Case Summaries – Page 213 – Electronic Discovery Law

Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)

Dec 01 2011

Key Insight: Court found no waiver of plaintiff?s claims of privilege resulting from the production of one privileged email where, pursuant to FRE 502(a) the waiver was not intentional as established by the sworn statement of plaintiff?s counsel that he was not aware that the plaintiff?s sister, the other party to the relevant email, was an attorney

Nature of Case: Hostile work environment, retaliation, intentional infliction of emotional distress

Electronic Data Involved: Privileged email

ANZ Advanced Techs., LLC v. Bush Hog, LLC, 2011 WL 814463 (S.D. Ala. Jan. 26, 2011)

Dec 01 2011

Key Insight: Where plaintiffs admitted to fabricating evidence and failed to comply with court orders to produce certain hard drives and other data storage and instead argued, among other things, that the hard drives etc. were in possession of an unrelated foreign corporation (ANZ International) and that ANZ USA was not involved in the discovery violations (including the fabrication of evidence), the court rejected such arguments upon establishing the connection between ANZ Int. and ANZ USA and ordered that plaintiffs? claims be dismissed

Nature of Case: Contract dispute

Electronic Data Involved: Fabricated evidence, hard drives, other storage devices

United States v. Hamilton, No. 2:11CR13-HEH, 2011 WL 1366481 (E.D. Va. Apr. 11, 2011)

Dec 01 2011

Key Insight: Employer?s policy notifying employees that there should be no expectation of privacy as to information ?sent, received, accessed, or stored? on work computer served to negate reasonable expectation of privacy for purposes of fourth amendment and to negate marital privilege as to emails stored on employee?s computer, even where those emails were sent at a time when no use policy was in place

Nature of Case: Criminal indictment

Electronic Data Involved: Email

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, No. 09-23411-CIV, 2011 WL 772855 (S.D. Fla. Feb. 19, 2011)

Dec 01 2011

Key Insight: Where defendants ?failed to properly conduct complete, thorough and timely searches of ESI responsive to Plaintiffs? discovery requests,? which the evidence showed resulted from ?a lack of familiarity and/or training in searching and producing ESI?, the court declined to impose default judgment and instead recommended that defendants? Motions for Summary Judgment be denied and ordered that defendants retain a third party consultant or vendor to perform a search for responsive documents, that responsive ESI be produced in a prescribed format, and that defendants pay plaintiffs? attorneys fees and costs

Nature of Case: Claim for damages arising from defendants? alleged failure to provide proper ship management and care

Electronic Data Involved: ESI

United States v. Ohle III, No. S3 08 CR 1109(JSR), 2011 WL 651849 (S.D.N.Y. Feb. 7, 2011)

Dec 01 2011

Key Insight: Court rejected defendants? assertion that government had violated is Brady obligations by producing documents in a database which was ?unduly onerous to access? in light of the large volumes of documents therein where both the government and defendant had equal access to the database and were thus ?just as likely to uncover the purportedly exculpatory evidence? and where, ?as a general rule, the Government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence.?

Nature of Case: Criminal

Electronic Data Involved: Large volumes of documents produced in a database format

Jimena v. UBS AG Bank, Inc., No. 1:07-cv-00367 OWW SKO, 2011 WL 2551413 (E.D. Cal. June 27, 2011)

Dec 01 2011

Key Insight: Court found plaintiff failed to properly authenticate emails allegedly sent to him by Clive Standish pursuant to either Evidence Rule 901(b)(1), permitting authentication through the testimony of a witness with personal knowledge, or Rule 901(b)(4) which allows authentication by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances and, absent admissible evidence to create a triable issue of material fact, granted defendant?s motion for summary judgment

Nature of Case: Fraud

Electronic Data Involved: Emails

Britton v. Wal-Mart Stores East, L.P., No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)

Dec 01 2011

Key Insight: Where defendant?s employee(s) were found to have allowed the loss of relevant video surveillance tape, despite repeated notification of its relevance and requests for preservation, and to have done so intentionally and in bad faith, court declined to enter default judgment but precluded defendant?s presentation of certain defenses and ordered payment of attorney?s costs and fees related to the motion for sanctions and payment of half of such costs and fees related to a prior motion in which defendant?s dishonesty regarding the existence of the at issue vide resulted in costs to the plaintiffs

Nature of Case: Claims arising from alleged wrongful detention of teens for shoplifting

Electronic Data Involved: Video surveillance

People v. Saibu, D054980, 2011 WL 73314 (Cal. Ct. App. 2011)

Dec 01 2011

Key Insight: Where trial court admitted enhanced digital photos despite prosecution?s failure to disclose that the photograph had been enhanced, or how , but offered defendant an opportunity to remedy the prejudice and locate an opposing expert, appellate court found no abuse of discretion; appellate court found no error in trial court?s failure to require a Kelly hearing with respect to the enhancement techniques where it was ?questionable? whether the Photoshop program used could be considered a scientific technique and where the expert testified that he had been using Photoshop since for 8 years, that it was ?widely available? and ?considered an essential tool? and where an appellate court in Washington had previously determined that the enhancement of latent prints with Photoshop was ?generally accepted in the relevant scientific community?; foundation was properly laid for admission of photos where expert testified as to how they were created and where ?other witnesses? testified that the surveillance video (from which still photos were taken) accurately depicted the events they had witnessed

Nature of Case: Robbery, murder

Electronic Data Involved: Enhanced digital photo

Millsaps v. Aluminum Co. of Amer., No. 10-84924, 2011 WL 6019220 (E.D. Pa. Dec. 2, 2011)

Dec 01 2011

Key Insight: Where, in a separate but similar case involving the same plaintiffs? counsel and defendant, defendant was previously prepared to produce the scanned contents of approximately 1300 boxes when the case settled, and where plaintiff in the present case (with the same plaintiffs? counsel) sought production of those documents in his case, and where the disagreement focused on which party should be allowed to search the documents for relevant information (because defendant felt that plaintiff?s search would identify all documents as relevant and plaintiff felt that defendant would not identify relevant documents that were not obviously relevant but nonetheless important), the court ordered the parties to confer to develop search terms and agreed, if necessary, to consider up to 100 disputed terms submitted by the parties

Nature of Case: Wrongful death, asbestos

Electronic Data Involved: Scanned hard copy

N.V.E. Inc. v. Palmeroni, No. 06-5455 (ES), 2011 WL 4407428 (D.N.J. Sept. 21, 2011)

Dec 01 2011

Key Insight: Court ordered adverse inference and monetary sanctions (in an amount to be established) where plaintiff was grossly negligent in its preservation, review and collection of documents, including by failing to issue a litigation hold and because of counsel?s failure to supervise the review and collection of documents, and where such failures resulted in the loss of relevant evidence; court denied request for preclusion of evidence where defendant failed to establish that plaintiff acted in bad faith; Motion for Reconsideration denied by District Judge 2012 WL 2020242 (D.N.J. June 5, 2012)

Catagory:Case Summaries