Case Summaries – Page 226 – Electronic Discovery Law

ANZ Advanced Techs., LLC v. Bush Hog, LLC, No. 09-00228-KD-N, 2010 WL 3699917 (S.D. Ala. Sept. 9, 2010)

Dec 01 2010

Key Insight: Court declined to reconsider its prior order directing plaintiff to produce certain hard drives and other data storage devices for forensic inspection where plaintiff failed to establish that such production was prohibited by Indian law and where plaintiff offered no evidence to rebut the court?s prior determination that plaintiff?s behavior ?cast serious doubt on the authenticity of any document produced? by plaintiff such that actual production of the devices was warranted

Electronic Data Involved: Hard drive, data storage devices

Mintel Int?l Group, Ltd. v. Neerghen, 2010 WL 145786 (N.D. Ill. Jan. 12, 2010)

Dec 01 2010

Key Insight: Court declined to grant spoliation sanctions for the destruction of metadata resulting from defendant?s continued use of his company-issued laptop where such use was not prohibited by the temporary restraining order and was not shown to destroy relevant evidence and where there was no evidence of defendant?s bad faith

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: Metadata

U.S. Bank Nat?l Assoc. v. Parker, 2010 WL 559135 (E.D. Mo. Feb. 10, 2010)

Dec 01 2010

Key Insight: Considering both the ?good cause? standard and the ?preliminary injunction-style analysis? court determined plaintiff was not entitled to expedited discovery to conduct forensic examination of defendant?s cell phone, PDA, and personal computer where defendant assured the court the relevant data would be preserved and where plaintiff failed to show the potential for spoliation or resulting prejudice

Nature of Case: Breach of a Confidentiality and Non-Solicitation Agreement, tortious interference with Plaintiff’s relationships with its clients and misappropriation of Plaintiff’s trade secrets

Electronic Data Involved: ESI

Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 WL 1286366 (W.D.N.Y. Mar. 31, 2010)

Dec 01 2010

Key Insight: Court found destruction or loss of documents resulting from failure to issue a litigation hold grossly negligent but declined to recommend dismissal or an adverse inference where the record did not reveal actual or likely prejudice and held open defendant?s option to renew their request following re-depositions of the relevant custodian, the cost of which plaintiff was to bear; for the late production of responsive documents, court recommended additional depositions and for plaintiff to bear the cost and for plaintiff to bear defendants? costs associated with the instant motions; magistrate judge?s recommendations were affirmed by the district court in their entirety 2010 WL 4027780 (W.D.N.Y. Oct. 14, 2010)

Nature of Case: Claims arising from alleged defects in cellular towers designed and manufactured by defendant

Electronic Data Involved: ESI, email

Eurand, Inc. v. Mylan Pharm., Inc., 266 F.R.D. 79 (D. Del. 2010)

Dec 01 2010

Key Insight: Evaluating the adequacy of plaintiff?s search for a specific category of information, the court noted that the test to determine the appropriateness of a search is whether the search ?could?have been expected to produce the information requested?, determined that the information sought was likely to be found in the emails of the inventors of a specific patent, and ordered plaintiff to search the emails of the relevant inventors within a date range prescribed by the court; opinion included brief discussion of keyword searching and noted, “[n]either lawyers nor judges are generally qualified to opine that certain search terms or files are more or less likely to produce information than those keywords or data actually used or reviewed.”

Nature of Case: Patent litigation

Electronic Data Involved: Emails

Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? motion to compel forensic imaging of defendants? computers and electronic media devices by court-appointed, neutral forensic examiner upon showing that defendants likely misappropriated proprietary information from plaintiff, that at least one defendant breached his duty to preserve by discarding a relevant laptop, and where there was a ?sufficient nexus? between plaintiffs? claims and its need obtain the requested forensic images; court split cost 80% to defendant 20% to plaintiff citing defendant?s ?culpability in necessitating the expense? and set out the imaging protocol to be employed by an agreed upon expert

Nature of Case: Computer Fraud and Abuse Act

Electronic Data Involved: Forensic image of hard drives, electronic media devices

Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL 2560455 (D. Neb. June 24, 2010)

Dec 01 2010

Key Insight: Where plaintiff presented evidence purportedly showing defendant?s intentional destruction of relevant evidence, court found an imminent threat of irreparable harm to plaintiff existed absent an order to prevent the destruction and that such an order was not likely to cause significant harm to third parties and thus granted plaintiff?s motion for a temporary restraining order preventing such destruction and requiring collection and preservation of relevant evidence, among other things

Nature of Case: Environmental litigation

Electronic Data Involved: ESI

Eli Lilly & Co. v. Wockhardt Ltd., 2010 WL 2605855 (S.D. Ind. June 22, 2010)

Dec 01 2010

Key Insight: Where plaintiff had produced millions of pages organized as maintained in the usual course of business, court denied defendant?s motion to compel plaintiff to precisely match the documents produced with the request to which they responded, but, citing plaintiff?s ?demonstrated ample resources?, ordered plaintiff to ?generally match up its documents with defendant?s requests by letter, chart, or some form of index? within 14 days; court declined to compel production of metadata that did not exist and ?OCR information? but ordered plaintiff to provide ?custodian information? as to those documents which lacked it

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Cencast Servs., LP v. United States, 2010 WL 3488806 (Fed. Cl. Ct. Sept. 3, 2010)

Dec 01 2010

Key Insight: Where data was lost as the result of the theft of a laptop and where hard copy documents were accidentally shredded despite efforts to preserve them safely, the court denied plaintiffs? motion for an adverse inference where defendant was ?at most? negligent and an adverse inference would be ?disproportionate to the offense?, where evidence was presented that indicated the requested presumption arising from the adverse inference was untrue, and where plaintiffs failed to demonstrate significant prejudice as the result of the loss

Nature of Case: Tax related claims

Electronic Data Involved: Contents of laptop, hard copy

Coburn v. PN II, Inc., 2010 WL 3895764 (D. Nev. Sept. 30, 2010)

Dec 01 2010

Key Insight: Where forensic investigation of plaintiff?s home computer revealed use of CCleaner only days before the investigation was scheduled, court denied motion for sanctions where the evidence indicated it was unlikely that relevant documents were destroyed and where in light of plaintiff?s denial that she ran or directed someone else to run CCleaner, there was not clear and convincing evidence of a violation of the court?s Forensics Order; court denied sanctions despite existence of thousands of ?non-standard? files containing keyword hits which indicated files that had been deleted where plaintiff presented evidence that such files could have been created in the normal use of the computer and where the relevance of the files could not be established for purposes of a spoliation analysis; court denied sanctions for plaintiff?s deletion of emails from her work account where the emails were saved to her personal computer and produced and where defendant?s protests that more emails should have been produced were insufficient to establish intentional spoliation; for plaintiff?s admitted and intentional destruction of audio tapes, the court imposed a $1500 monetary sanction

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Catagory:Case Summaries