Case Summaries – Page 226 – Electronic Discovery Law

Read v. Teton Springs Golf & Casting Club, LLC, 2010 WL 2697596 (D. Idaho July 6, 2010)

Dec 01 2010

Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored

Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties

Electronic Data Involved: Email, hard drives

Peal v. Lee, 933 N.E.2d 450 (Ill. Ct. App. 2010)

Dec 01 2010

Key Insight: On appeal from the trial court?s order of dismissal, where the evidence indicated that plaintiff repeatedly utilized scrubbing software to delete data subject to preservation and which the court had ordered the plaintiff to produce and likely discarded other relevant external drives, the appellate court considered the six factors contemplated by the trial court when determining the proper sanction, namely, ?surprise, prejudice, the type of evidence at issue, diligence, timeliness of objection, and good faith? and affirmed the sanction upon finding ?absolutely no evidence that the trial court abused its discretion?

Nature of Case: Defamation and related claims

Electronic Data Involved: ESI, contents of hard drives, external drives

Salamey v. Berghuis, 2010 WL 3488692 (E.D. Mich. June 30, 2010)

Dec 01 2010

Key Insight: Where surveillance footage stored on a hard drive was overwritten and lost, it was ?reasonable for the court of appeals to find that the police did not act in bad faith? where the investigator had no reason to believe that extensive review of the footage would be warranted and where there was no evidence that he purposefully erased the footage or allowed it to be rewritten and where the investigator testified he did not know the drive would rewrite itself while unplugged; court stated, ?even if [the investigator] and other police were grossly negligent in thinking that the hard drive would not rewrite itself when unplugged, that does not constitute bad faith?

Nature of Case: Criminal/Armed robbery

Electronic Data Involved: Surveillance footage stored on hard drive

Kwon v. Costco Wholesale Corp., 2010 WL 571941 (D. Haw. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion in limine and imposed an adverse inference resulting from defendant?s failure to preserve surveillance video tape potentially containing footage of the underlying accident upon finding that defendant was aware of its duty to preserve but took no steps to prevent the footage from being automatically recorded over; court denied request for default judgment where such a drastic step was not warranted absent evidence of the ?requisite willfulness, fault, or bad faith?; court declined to impose monetary sanctions

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Video surveillance tape

Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519 (Mo. App. Ct. 2010)

Dec 01 2010

Key Insight: Where trial court ordered a single plaintiff to produce all information in his possession or control that had been posted to a relevant web forum and where that plaintiff complied in part but withheld information that could have uniquely identified users and unposted private messages, the trial court abused its discretion in striking all plaintiffs? pleadings and dismissing their claims as a sanction for discovery violations where the request for discovery was overly broad in the first place and where the sanction imposed for failing to respond to such an overly broad request was ?unjust?

Nature of Case: Claims arising from city’s approval of development of property

Electronic Data Involved: ESI posted to website and electronic forum

Daugherty v. Murphy, 2010 WL 4877720 (S.D. Ind. Nov. 23, 2010)

Dec 01 2010

Key Insight: Where defendants established that the requested data extracts proposed by plaintiffs would take 5 months and ?about $100,000? the court granted defendants? motion for a protective order and ordered defendants to execute the data extractions which they had proposed and which they represented would be far less burdensome; court denied plaintiff?s motion to compel defendants? production of ?file layouts? for the purpose of revising their request for data extracts but acknowledged that defendants? failure to previously produce ?file layouts? was a serious issue and its wiliness to address sanctions upon a motion from plaintiffs

Nature of Case: Class action

Electronic Data Involved: Data extracts

Cruz v. G-Town Partners, L.P., 2010 WL 5297161 (Del. Super. Ct. Dec 3, 2010)

Dec 01 2010

Key Insight: Court denied motion for adverse inference for defendant?s ?inadequately explained, perhaps even suspect? inability to produce photographs of the alleged accident scene (the bathroom of plaintiff?s apartment) where plaintiff ?did not exhaust every available mechanism to obtain these photographs? (by failing to obtain a forensic analysis of the computers alleged to have stored the photos, for example) and where the facts underlying the absence of the photos were ?sufficiently equivocal and incomplete to defeat plaintiff?s claim of entitlement to an adverse inference? and where the probative value of the photos was ?speculative at best?; court?s denial of adverse inference resulted in denial of application of Res Ipsa Loquitur and thus the entry of summary judgment in favor of defendants

Nature of Case: Personal Injury

Electronic Data Involved: Photographs stored electronically and sent via email

MVB Mortgage Corp. v. Fed. Deposit Ins. Corp., 2010 WL 582641 (S.D. Ohio Feb. 11, 2010)

Dec 01 2010

Key Insight: Answering question of whether inadvertent disclosure of privileged information to testifying expert resulted in waiver of privilege, court ?conclude[ed] that a claim of inadvertent waiver cannot be used to withhold information from opposing counsel once it has found its way into the expert?s hands ? however unintentional that may be.?

Electronic Data Involved: Email

Mformation Tech., Inc. v. Research in Motion, Ltd., 2010 WL 3154441 (N.D. Cal. Aug. 9, 2010)(Not for Citation)

Dec 01 2010

Key Insight: Where nearly two months following notice of inadvertent production of privileged materials plaintiff undertook a review of its entire production and production process and thereafter attempted to recall an additional 55 inadvertently produced documents, the court acknowledged that plaintiff ?was perhaps not as diligent as defendant would have liked? in initiating its search, but denied the motion for a finding of waiver

Electronic Data Involved: Privileged materials

Cherrington Asia Ltd. v. A&L Underground, Inc., 2010 WL 126190 (D. Kan. Jan. 8, 2010)

Dec 01 2010

Key Insight: Court denied sanctions for defendants? alleged ?document dump? of a hard drive containing both responsive and non-responsive documents as maintained in the ordinary course of business where, upon plaintiffs? initial objection, defendants re-produced the hard drive with irrelevant documents segregated and with a tool allowing the hard drive to be word-searched and where, despite plaintiffs? alleged discovery of evidence reflecting defendants? purposeful efforts to obstruct discovery, plaintiffs waited 15 months to bring their motion and were thus ?simply too late?

Electronic Data Involved: Computer hard drive

Catagory:Case Summaries