Case Summaries – Page 227 – Electronic Discovery Law

Shanahan v. Superior Court, 2010 WL 2840254 (Cal. Ct. App. July 21, 2010)

Dec 01 2010

Key Insight: Court ruled against waiver as to privileged documents sent from and stored on deceased employee?s work computer where the employee had a reasonable expectation of privacy under the ?unusual circumstances? presented, including that the employee believed he was permitted to communicate with his attorney via his computer because the attorney was paid for by the company for the purpose of negotiating employee?s employment agreement and because of the failure of the employer?s use policy to expressly negate the expectation of privacy by failing to specifically reference waiver of attorney-client privilege, among other reasons; court also ruled that dissemination of a draft memo to the employee?s secretary did not waive privilege where the secretary was assigned to the employee, frequently edited and printed documents for the employee, and understood that such documents were to be kept confidential

Nature of Case: As executor, widow sued husband’s employer for breach of compensation agreement

Electronic Data Involved: Privileged emails, ESI

Mt. Hawley Ins. Co. v. Felman Prod. Inc., 2010 WL 3294389 (S.D. W. Va. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendants sought production from 10 foreign custodians alleged to be agents of the plaintiff, the court conducted an extensive review of evidence as to each persons? involvement with the plaintiff and the applicable case law from several jurisdictions and found as to 9 of the custodians that they maintained relevant information and that plaintiff exercised sufficient control of that information, in light of the custodian?s significant involvement with plaintiff?s business, that the information should be produced; in so holding, the court rejected plaintiff?s arguments that the discovery sought had already been produced, was not under their control, was cumulative and duplicative, and was unduly costly and burdensome to produce

Nature of Case: Claims arising from failure of tranformer for silicomanganese furnace

Electronic Data Involved: ESI in custody of foreign custodians

Smith v. James C. Hormel School of the Va. Inst. of Autism, 2010 WL 3702528 (W.D. Va. Sept. 14, 2010)

Dec 01 2010

Key Insight: Court declined to find privilege was waived as the result of a significant delay in identifying withheld privileged communications where defendants were aware that the pro se plaintiffs had consulted with counsel but failed to follow up regarding the existence of privileged communications, where defendants were not prejudiced by the delay, and where the court found no evidence of bad faith, but, noting that one plaintiff was a lawyer and should have known of the disclosure requirements, imposed a monetary sanction equal to defendant?s fees and costs for bringing the motion to compel

Nature of Case: Alleged violation of the Individuals with Disabilities Education Act

Electronic Data Involved: Privileged emails

BBVA Compass Ins. Agency, Inc. v. Olson, 2010 WL 4004516 (D. Colo. Oct. 12, 2010)

Dec 01 2010

Key Insight: Where plaintiff presented evidence that searching for the information requested by defendants could exceed 400 hours and where the request was duplicative and other sources of information existed, the court found that ?the burden on plaintiff ? is heavier than Defendants? alleged need for the files warrants? and granted plaintiff?s request for a Protective Order

Nature of Case: Claims for misappropriation of trade secrets, breach of fiduciary duty, breach of the duty of loyalty and breach of contract, among others

Electronic Data Involved: ESI/customer files

United States v. Wright, 625 F.3d 583 (9th Cir. 2010)

Dec 01 2010

Key Insight: Court reasoned that the Adam Walsh Act?s requirement that defendant have ?ample access? to examine child pornography evidence did not mean ?equal access? and ruled that where defendant?s expert was given access to the evidence under certain conditions (including time and place restrictions) but not provided with a mirror image of the drive to examine at will and where the expert was expressly ?comfortable? with that arrangement and was afforded 14 months to examine the evidence, ?ample access? was provided

Nature of Case: Child Pornography

Electronic Data Involved: Hard drive containing the pornographic images

United States v. Hornback, 2010 WL 4628944 (E.D. Ky. Nov. 8, 2010)

Dec 01 2010

Key Insight: Where defendant?s expert was offered the opportunity to examine the seized computer in a private, unmonitored room as often as necessary and to consult with defendant by phone during the examination, but where simultaneous internet access was not provided, the court found that ?ample opportunity? for inspection had been provided and denied defendant?s motion to compel an altered version of the hard drive with actual photographs removed

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

Commonwealth v. Suarez-Irizzary, 2010 WL 5312257 (Pa. Comm. Pl. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court upheld the Commonwealth?s request to establish the school zone applicability using measurements from Google Earth upon finding that the measurement was properly authenticated by testimony that the accuracy of the measurement had been verified by comparing Google Earth?s results to a known distance between two points as established by independent, manual measuremen

Nature of Case: Drug charges

Electronic Data Involved: Google Earth measurement

Hilton-Rorar v. State and Fed. Commc?ns, Inc., 2010 WL 1486916 (N.D. Ohio Apr. 13, 2010)

Dec 01 2010

Key Insight: Addressing several questions regarding attorney-client privilege and work product, court stated that ?attachments or other email communications that are not otherwise independently privileged? but are contained within or attached to a privileged email were protected by the privilege where ?the disclosure of those emails would necessarily reveal the substance of a confidential client communication made seeking legal advice? and declined to compel their disclosure or the disclosure of the emails to which they were attached

Electronic Data Involved: Privileged emails

Chevron Corp. v. Stratus Consulting, Inc., 2010 WL 3489922 (D. Colo. Aug. 31, 2010)

Dec 01 2010

Key Insight: Court granted petitioner?s motion to compel production of subpoenaed information in native format, including re-production of materials already produced in .pdf format, where, despite respondent?s objections, the court determined the underlying metadata could be probative, but ordered petitioner to bear the cost where the subpoena had been ?less than clear? regarding the format of production and where respondents? claims of undue burden ?carrie[d] some legitimacy?; court?s opinion acknowledged respondent?s argument regarding the inability to Bates stamp native documents and ordered that the documents be Bates-stamped ?only as technologically possible?

Electronic Data Involved: ESI

Response Personnel, Inc. v. Aschenbrenner, 909 N.Y.S.2d 433 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where a lower court denied plaintiff?s motion for a protective order and ordered the production of tax returns and other documents in electronic format at plaintiff?s expense, the appellate court affirmed the denial of the protective order and the order compelling electronic production but found that requiring plaintiff to bear the costs imposed an undue burden where ?generally, the costs of production is borne by the party requesting the production, and the cost of creating electronic documents here would not be inconsequential?

Electronic Data Involved: Tax returns and other documents in electronic form

Catagory:Case Summaries