Case Summaries – Page 237 – Electronic Discovery Law

Radian Asset Assurance, Inc. v. Coll. Of the Christian Bros. of New Mexico, 2010 WL 4338057 (D.N.M. Sept. 15, 2010)

Dec 01 2010

Key Insight: Where parties could not reach agreement regarding parameters of search protocol, court ordered defendant to utilize search terms proposed by plaintiff but declined to order search of email at the present time, established the appropriate date range, and ordered defendants to produce ?exculpatory information?, i.e., ?anything that the College … believes [plaintiff] could reasonably use or could reasonably lead to admissible evidence?; court declined to order defendant to produce the files identified as a result of the search and ordered instead the production of a report of the results and for the parties to confer regarding the results

Electronic Data Involved: ESI

Brown v. Kia Motors Corp., 2010 WL 135127 (W.D. Pa. Jan. 9. 2010)

Dec 01 2010

Key Insight: Court declined to order adverse inference for the destruction of plaintiff?s wife?s (a non-party) camera and memory card and plaintiff?s resulting inability to provide the ?digital files? created when the relevant photographs were taken where ?the camera and memory stick [did] not appear to have ever been within plaintiff?s control? and where ?it [did] not appear that the camera and memory stick were suppressed or withheld, but rather both were destroyed in an accident? and thus the elements necessary for an adverse inference were not met

Nature of Case: Product liability

Electronic Data Involved: Digital files related to photographs alleged to be relevant to “the condition of the seatlbelt”

Whitby v. Chertoff, 2010 WL 431974 (M.D. Ga. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for sanctions for a myriad of alleged violations, including failure to preserve emails and failure to adequately search for responsive ESI, where plaintiff failed to offer sufficient evidence of such violations and where the court found defendant?s search was reasonable; court ordered defendant to show cause why it failed to produce emails from certain supervisors in response to the court?s prior order where plaintiff offered evidence that such emails existed

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email

Bellinger v. Astrue, 2010 WL 1270003 (E.D.N.Y. Apr. 1, 2010)

Dec 01 2010

Key Insight: In an opinion addressing a number of discovery issues, the court declined to compel production of email in native format where defendant provided a ?reasonable explanation? for why it chose to produce in hard copy, namely, because ?they could more easily be reviewed for responsiveness and privilege?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010)

Dec 01 2010

Key Insight: District court did not abuse its discretion when it denied plaintiff?s motion for spoliation sanctions against remaining defendant where defendant was not responsible for the destruction of the relevant servers and the district court thus ?balanced the lack of any assertion of wrongdoing by [defendant] with the harm caused to [plaintiff?s] claims? and where Ohio law provided a remedy for a party injured by another party?s spoliation of evidence, namely a claim for the tort of spoliation (which plaintiff apparently asserted against the actual spoliating party)

Nature of Case: Copyright/trade secret infringement, intentional spoliation

Electronic Data Involved: Servers containing relevant ESI

Edington v. Madison Coal & Supply Co., Inc., 2010 WL 2244078 (E.D. Ky. June 4, 2010)

Dec 01 2010

Key Insight: Finding ?there [was] no evidence that the electronic data was ever created, much less?discarded?, court denied plaintiff?s motion for spoliation sanctions where defendant presented evidence that the relevant GPS system had to be activated in order to record data and that the system was not activated on the date of the accident, and where no regulation or law required the GPS be activated or recording

Nature of Case: Personal Injury

Electronic Data Involved: GPS data

Read v. Teton Springs Golf & Casting Club, LLC, 2010 WL 2697596 (D. Idaho July 6, 2010)

Dec 01 2010

Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored

Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties

Electronic Data Involved: Email, hard drives

Peal v. Lee, 933 N.E.2d 450 (Ill. Ct. App. 2010)

Dec 01 2010

Key Insight: On appeal from the trial court?s order of dismissal, where the evidence indicated that plaintiff repeatedly utilized scrubbing software to delete data subject to preservation and which the court had ordered the plaintiff to produce and likely discarded other relevant external drives, the appellate court considered the six factors contemplated by the trial court when determining the proper sanction, namely, ?surprise, prejudice, the type of evidence at issue, diligence, timeliness of objection, and good faith? and affirmed the sanction upon finding ?absolutely no evidence that the trial court abused its discretion?

Nature of Case: Defamation and related claims

Electronic Data Involved: ESI, contents of hard drives, external drives

Maggette v. BL Dev. Corp., 2010 WL 3522798 (N.D. Miss. Sept. 2, 2010)

Dec 01 2010

Key Insight: Where the defendant was warned that failure to uphold discovery obligations would result in severe sanctions and where, with the help of a special master, it was determined that defendant ?repeatedly and knowingly? concealed information from the court and acted in bad faith to prevent the discovery of relevant information, including interfering with counsel?s efforts to identify responsive information, the court ordered dispositive sanctions and found that an agency relationship existed as a matter of law between defendant and the bus company involved in the fatal accident that was the basis for plaintiffs? claims

Nature of Case: Claims arising from fatal bus accident

Electronic Data Involved: ESI

State of California ex rel Fowler v. Caremark RX, LLC, 2010 WL 3991298 (Cal. Ct. App. Oct. 13, 2010):

Dec 01 2010

Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal

Nature of Case: Violation of False Claims Act

Electronic Data Involved: Archived ESI

Catagory:Case Summaries