Case Summaries – Page 228 – Electronic Discovery Law

State v. Durham, 2010 WL 1254355 (Ohio App. Ct. Apr. 1, 2010)

Dec 01 2010

Key Insight: Where defendant appealed his conviction and argued the State?s failure to preserve videotape depicting a struggle between police and defendant was a violation of due process, court found the videotape was not subject to production pursuant to Brady absent evidence that it contained ?materially exculpatory evidence?, and that absent evidence of bad faith, defendant could not show a due process violation arising from the destruction of ?potentially useful? evidence

Nature of Case: Criminal

Electronic Data Involved: Surveillance video

One River Place Condo Assoc., Inc. v. Axis Surplus Ins. Co., 2010 WL 235028 (E.D. La. Jan. 14, 2010)

Dec 01 2010

Key Insight: Addressing the question of whether document imaging costs were recoverable under 28 USC ? 1920, court noted that ?[t]oday?s technologies allow counsel to exchange ?copies? of [documents for use in the case] electronically, reducing time and cost? and that there was no indication that electronic production was more expensive or duplicative of hard copy costs, and held that it ?would not punish [plaintiff] for choosing the more efficient, electronic method of producing costs? and that plaintiff?s document imaging costs were therefore recoverable under the statute

Nature of Case: Claims arising from property damage resulting from Hurrican Katrina

Electronic Data Involved: ESI

Martinez-Hernandez v. Butterball LLC, 2010 2089251 (E.D.N.C. May 21, 2010)

Dec 01 2010

Key Insight: Where plaintiff?s search requests were unreasonable and unduly burdensome and where defendant?s proposed ESI search could ?be reasonably expanded to search for relevant information without becoming unduly burdensome?, court ordered the parties to continue negotiating to identify 25 agreed upon search terms to search relevant custodians? reasonably accessible data; court found backup tapes ?not readily accessible because of undue burden or cost? and ordered defendant to run the agreed upon search terms ?only on reasonably accessible sources, such as active and archived data of network computers?

Nature of Case: Class action

Electronic Data Involved: ESI

Midkiff v. Commonwealth, 694 S.E.2d 576 (Va. 2010)

Dec 01 2010

Key Insight: Where defendant challenged admission of hard copy images and video reproduced from electronic files on DVD which were copied from hard drives found in defendant?s computer, Supreme Court declined to extend best evidence rule to require admission of the hard drives themselves and, where forensic expert testified to the integrity of the copying process and where testimony was presented that verified the reproductions were accurate representations of the illicit material for which defendant was charged, court affirmed the judgment of the court of appeals that the evidence was properly admitted

Nature of Case: Possession of child pornography

Electronic Data Involved: Images copied from DVDS with in turn were copied from original hard drives

Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010)

Dec 01 2010

Key Insight: In divorce proceedings, court denied wife?s motion for access to husband?s office hard drive where wife was not entitled to ?unrestricted turnover? of the drive and failed to propose a discover/issue resolution protocol to allow for the protection of privileged and private material but allowed for possible renewal of the motion, which must contain a proper discovery protocol, and provided specific instruction for the proper content of the same

Nature of Case: Matrimonial action/divorce

Electronic Data Involved: Husband’s office hard drive

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

Dec 01 2010

Key Insight: For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was ?at a minimum? negligent and indicated that an adverse inference would be crafted after all the evidence had been received. For ?prolonged delay? in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000

Nature of Case: Breach of contract, breach of implied covenant of good faith and fair dealing

Electronic Data Involved: Data on laptops, emails

David v. Signal Int., LLC, 2010 WL 2723180 (E.D. La. July 6, 2010)

Dec 01 2010

Key Insight: Court declined to hold defendant in contempt for its unilateral redactions of alleged personal and confidential information but, upon evidence of over-redacting, ordered plaintiffs to identify approximately 3000 documents (a number provided by plaintiffs) to be sent to defendant for verification of proper redacting and for the parties to confer to fashion an appropriate protective with regard to the documents redacted and/or withheld on the ground proprietary or business confidentiality privilege

Nature of Case: Class action

Electronic Data Involved: ESI

Barrow v. Miner, 2010 WL 4016815 (Ohio Ct. App. Oct. 15, 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in dismissing plaintiff?s claims as sanction for spoliation where plaintiff failed to preserve evidence and in fact purposefully acted to destroy evidence by utilizing scrubbing software and taking other deliberate measures

Nature of Case: Plaintiffs brought suit to recover losses based on a breach of fiduciary duty, wrongful termination, and indemnification

Electronic Data Involved: Contents of plaintiff’s computer

Kmart Corp. v. Footstar, Inc., 2010 WL 4512337 (N.D. Ill. Nov. 2, 2010)

Dec 01 2010

Key Insight: Court found the producing party did not take reasonable steps to prevent disclosure and that privilege was therefore waived as to inadvertently produced privileged documents where the number of documents requiring review prior to production was low in light of the public nature of most documents produced at the same time as the inadvertently produced documents, where the alleged time constraints for the relevant review were ?self-imposed? by the producing party, and where despite representations that the materials were reviewed by an attorney who was looking for privileged materials, insufficient facts were offered in support of that contention

Nature of Case: Plaintiff sought indemnification for underlying personal injury suit

Electronic Data Involved: ESI

DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Dec 01 2010

Key Insight: Court ordered third-party to conduct additional searching for ESI and for counsel to meet and confer in person to determine the proper scope of the search, search terms, etc. and ordered that the costs of future discovery be split, except with respect to the third party?s search of its former CEO?s data, where that CEO had a practice of deleting email on a daily basis to avoid discovery

Nature of Case: Breach of fiduciary duty, tortious interference with business expectancy, breach of contract

Electronic Data Involved: ESI, backup tapes

Catagory:Case Summaries