Case Summaries – Page 229 – Electronic Discovery Law

Tamburo v. Dworkin, No. 04 C 3317, 2010 WL 4867346 (N.D. Ill. Nov. 17, 2010)

Dec 01 2010

Key Insight: Court declined to stay discovery pending resolution of defendants? Motion to Dismiss, but ?to ensure that discovery [was] proportional to the specific circumstances of the case, and to secure the just, speedy, and inexpensive determination of this action,? ordered phased discovery and (citing the court?s Case Management Procedures, the Seventh Circuit Electronic Discovery Pilot Program, and the Sedona Conference Cooperation Proclamation) ordered that the parties cooperate to prepare a phased discovery schedule

Nature of Case: Defamation, tortuous interference with business and civil conspiracy arising from dispute over contents of dog-pedigree software

Electronic Data Involved: ESI

People v. Flores, 941 N.E.2d 375 (Ill. App. Ct. 2010)

Dec 01 2010

Key Insight: Case was reversed and remanded where trial court erred in admitting videotape that was admittedly altered as substantive evidence (as opposed to demonstrative evidence, for which the foundation would have been sufficient) where ?an adequate foundation must show that the original has been preserved without change, addition, or deletion and that, if a copy is introduced into evidence, there must be a cogent explanation of any copying such that the court is satisfied that during the copying process there were no changes, additions, or deletions.?

Nature of Case: Driving with revoked or suspended license

Electronic Data Involved: Videotape made by witness

Secure Energy, Inc. v. Coal Synthetics, 2010 WL 597388 (E.D. Mo. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion to compel re-production of ESI in native format because the motion was untimely filed but went on to find that defendants? production of ESI in .PDF format was reasonable absent plaintiffs? request for production in native format and that compelling re-production would prejudice defendants where the metadata produced would likely necessitate additional expert involvement and discovery resulting in an adjustment to the case management schedule

Electronic Data Involved: ESI

Helm v. Alderwoods Group, Inc., 2010 WL 2951871 (N.D. Cal. July 27, 2010)

Dec 01 2010

Key Insight: Court ordered defendant to identify the authors and recipients of all documents listed on its privilege log and warned that failure or inability to do so would result in waiver; where defendant failed to separately log all messages within email chains, the court recognized a split in authorities regarding the need to itemize each message separately and concluded that in this case, the ?better approach? would be to require defendant to supplement its log with each message itemized

Electronic Data Involved: ESI, privileged email

Mitchell Eng?g. v. City of San Francisco, 2010 WL 2951856 (N.D. Cal. July 27, 2010)

Dec 01 2010

Key Insight: Where plaintiff offered to produce hard copy ?job files? for non-city projects as an alternative to conducting key word searching of 25 custodians to identify emails related to non-city projects but where defendant objected that hard copy was less searchable and would not contain all relevant emails, court denied defendant?s motion to compel keyword searching and production of ESI citing the more than two month delay since the issue was first raised, the close proximity of trial, and the court?s inability to determine the relevance of the 188 proposed search terms and ordered plaintiff?s production of hard copy files

Electronic Data Involved: Emails, ESI, hard copy

Zynga Game Network, Inc. v. John Does 1-5, 2010 WL 271426 (N.D. Cal. Jan. 21, 2010)

Dec 01 2010

Key Insight: Where plaintiffs sought leave to conduct third party discovery for purpose of identifying defendants, court granted leave to serve third party subpoenas on web hosting sites for purpose of obtaining identifying information, but denied motion to allow additional discovery exceeding the scope of plaintiff?s limited, stated purpose of identification of defendants

Nature of Case: Unauthorized sales of online gambling “chips”

Electronic Data Involved: Identifying information

In re Hecker, 2010 WL 654151 (Bankr. D. Minn. Feb. 23, 2010)

Dec 01 2010

Key Insight: Where debtor committed numerous discovery violations including making misrepresentations to the court regarding his possession of relevant ESI and the completeness of his productions, among other things, and where debtor ?intentionally withheld relevant, admissible evidence in order to delay and obfuscate?, court granted plaintiff?s motion for default judgment after finding that ?no lesser sanction would result in defendant?s compliance?

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: ESI

State v. Johnson, 2010 WL 1424369 (Ariz. Ct. App. Apr. 8, 2010)

Dec 01 2010

Key Insight: Appellate court affirmed trial court?s dismissal of charges related to defendant?s alleged possession of child pornography where FBI refused to follow the trial court?s order to produce a copy of the relevant hard drive to defendant?s expert, pursuant to the terms of a protective order, and where defendant made a ?substantial showing? that reproduction of the drive was required for the effective investigation of his defense because the FBI?s proffered solution of allowing defendant?s expert to analyze the drive at the FBI?s offices did not properly address defendant?s concerns about the privacy of his expert?s work or the deprivation of the expert?s references and resource which were not available at the proposed location

Nature of Case: Sexual exploitation of a minor

Electronic Data Involved: Hard Drive

Perry v. Schwarzenegger, 2010 WL 1135781 (N.D. Cal. Mar. 22, 2010)

Dec 01 2010

Key Insight: Addressing several objections to the magistrate?s order compelling production of data from non-parties, court held that despite ?minimal? showing of relevance, magistrate did not err in ordering production of data where magistrate weighed the relevance of the data against the burden alleged and ordered appropriate steps to reduce the burden, including limiting the review of documents to those hit by a small set of search terms, waiving respondents? obligations to produce a privilege log, and allowing one respondent to search only its central server rather than 75 individual hard drives following that respondents? showing of undue burden; court rejected petitioner?s objections to the measures taken to reduce the non-parties? burdens

Nature of Case: Litigation surround California’s Proposition 8

Electronic Data Involved: ESI

State v. Grenning, 234 P.3d 169 (Wash. 2010)

Dec 01 2010

Key Insight: Where defendant?s forensic expert?s access to the hard drives seized from defendant was limited by protective order which allowed access only in a county building, using county equipment, the Supreme Court affirmed reversal of defendant?s conviction for 20 counts of possession of child pornography on the grounds that he was denied meaningful access to the hard drives and held that the appropriate test ?under these circumstances? was the ??overwhelming untainted evidence test? to demine whether a trial court?s erroneous ruling requires reversal?

Nature of Case: Possession of child pornography and related charges

Electronic Data Involved: Hard drives seized from defendant

Catagory:Case Summaries