Case Summaries – Page 228 – Electronic Discovery Law

Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010)

Dec 01 2010

Key Insight: Where MySpace messages were admitted into evidence upon the testimony of the recipient which established that the messages were sent by someone with access to the alleged sender?s MySpace page but that did not establish the identity of the person who actually sent the communications, appellate court ruled the messages were admitted in error, but that the error did not create a substantial likelihood of a miscarriage of justice; conviction was affirmed

Nature of Case: Appeal of murder conviction

Electronic Data Involved: MySpace messages

Universal Del. v. Comdata Corp., 2010 WL 2330284 (E.D. Pa. June 4, 2010)

Dec 01 2010

Key Insight: Defendant?s motion for a protective order precluding compliance with plaintiff?s? subpoena duces tecum was denied where defendant failed to establish the irrelevance of the data sought and failed to establish the unduly burdensome nature of producing the information requested or to assert that the information was not reasonably accessible and where the court determined that an existing protective order was sufficient to protect any confidential information produced

Nature of Case: Antitrust litigation

Electronic Data Involved: Emails, ESI, hard copy

Moore v. Napolitano, 723 F. Supp. 2d 167 (D.D.C. 2010)

Dec 01 2010

Key Insight: District court upheld sanction precluding defendant from presenting evidence of non-discriminatory reasons for non-promotion upon a prima facie showing of disparate treatment where defendant failed to conduct a reasonable search for responsive paper documents, despite a court order to do so, including providing ?ambiguous and deficient? search instructions to employees; failing to follow up when employees failed to uncover responsive information; and failing to credibly explain defendant?s search efforts, and where the Magistrate Judge properly concluded the sanction was proportional to the offense(s)

Nature of Case: Putative class action for discriminatory non-promotion

Electronic Data Involved: Hard copy

Boyd v. Toyobo Am., Inc. (In Re Second Chance Body Armor, Inc.) 2010 WL 3168643 (Bankr. W.D. Mich. July 29, 2010)

Dec 01 2010

Key Insight: Court found email had not been properly authenticated where the email was not self authenticating and where the email was a purely internal communication between employees of a third party company and thus could not be authenticated by the defense witness who was not an employee of that company, was not listed as a recipient of the email, and testified that he had never seen the document before

Nature of Case: Adversarial action in Bankruptcy

Electronic Data Involved: Email

Kaufman v. Am. Express Travel Related Servs. Co., Inc., 2010 WL 3365921 (N.D. Ill. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendant admitted that information regarding potential class members had been deleted pursuant to its regular information management practice and indicated that some (but not all) information could be retrieved from backup tapes, the court acknowledged defendant?s duty to preserve but reasoned the culpability for such deletions was ?somewhat lessened? because no one had requested that defendant alter is retention policies and because the deletions occurred ?pursuant to the regular operation? of those policies and determined that no conclusions could be reached on the record provided but that ?the court may consider imposing a remedy in any findings regarding the fairness of settlement?

Nature of Case: Class action challenging certain fees assessed on American Express-issued gift cards

Electronic Data Involved: Customer-identifying information

Cenveo Corp. v. S. Graphic Sys., Inc., 2010 WL 3893709 (D. Minn. Sept. 30, 2010)

Dec 01 2010

Key Insight: For CFO?s intentional destruction of evidence to defeat litigation despite a duty to preserve, the district court judge adopted the magistrate judge?s recommendation and imposed a $100,000 fine and found that more drastic sanctions were not warranted where the resulting prejudice was mitigated by the availability of all the defendants and other witnesses for questioning

Nature of Case: Tortious interference with business relationships, misappropriation of trade secrets, unfair competition

Electronic Data Involved: Emails

Oto Software, Inc. v. Highwall Techs., LLC, 2010 WL 3842434 (D. Colo. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion for sanctions where defendant Highwall breached its obligation to preserve information related to the underlying royalty dispute following receipt of a letter which triggered the duty to preserve and ordered that discovery be re-opened and that defendant Highwall bear the costs but also found that the duty to preserve documents related to the development of allegedly infringing software was not triggered until the filing of the complaint and that no spoliation had occurred; court found purchaser of Highwall?s assets during pendency of the royalty dispute had no duty to preserve where the software at issue was excluded from purchaser?s acquisition

Nature of Case: Royalty dispute, copyright infringement

Electronic Data Involved: ESI

HR Tech., Inc. v. Imura Int. U.S.A., Inc., 2010 WL 4792388 (D. Kan. Nov. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff was required to produce its patent counsel?s relevant files and where its counsel retained hard copies of relevant emails but admitted to the destruction of electronic copies in accordance with the firm?s email policy, despite knowledge of the relevant dispute between plaintiff and defendant, the court denied a motion for sanctions where there was no evidence of bad faith in the destruction (because counsel acted pursuant to a ?general policy applying to all legal matters?) and where, because hard copies were preserved, there was no showing of prejudice to defendants

Nature of Case: Patent litigation

Electronic Data Involved: Emails

VocalSpace, LLC v. Lorenso, 2010 WL 5247451 (E.D. Tex. Dec. 16, 2010)

Dec 01 2010

Key Insight: Where, despite a clear duty to preserve, defendant transferred relevant data to a new server and then erased and sold the old servers, and where, as a result, ?log files? were lost, the court found that the evidence ?falls short? of evidencing bad faith and declined to impose ?death penalty sanctions? but ordered that the admission of evidence of defendants? preservation efforts and evidence destruction was appropriate and ordered that evidence of the circumstances surrounding the destruction of the servers would be allowed at trial

Nature of Case: Copyright infringement, misappropriation of trade secrets, breach of fiduciary duty, etc.

Electronic Data Involved: ESI, “log files”

Hunsaker v. Proctor & Gamble Mfg. Co., 2010 WL 5463244 (D. Kan. Dec. 29, 2010)

Dec 01 2010

Key Insight: Where defendant sought leave to serve a subpoena upon a public library seeking information related to plaintiff?s internet use to confirm his alleged job seeking activities, the court found the subpoena overly broad on its face and found that even a more limited subpoena would impose a burden and expense outweighed by the likely benefit; court found proposed subpoenas to internet job search sites (e.g. Monster) would result in an undue burden in light of the expansive definition of document, but that defendant would be allowed to serve the subpoenas if the list of ?definitions? was removed

Nature of Case: Violations of ADEA and ADA

Electronic Data Involved: ESI related to online job searches

Catagory:Case Summaries