Case Summaries – Page 242 – Electronic Discovery Law

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

United States v. Perraud, 2010 WL 228013 (S.D. Fla. Jan. 14, 2010)

Dec 01 2010

Key Insight: Despite finding Fed. R. Crim. P. 16 did not require the government to identify the evidence upon which it intended to rely at trial where defendants claimed the government had attempted to overwhelm them by providing access to a database containing millions of documents, and despite government?s production of an index to the database and directions to the materials it deemed most relevant, magistrate recommended the government be ordered to provide defendants with an exhibit list and hard copies of the exhibits ten days before trial, for the government to supplement that list as necessary, and for the government to comply in good faith where the government had previously offered to supply the same

Nature of Case: Conspiracy to destroy records and destruction of records

Electronic Data Involved: ESI

Actionlink, LLC v. Sorgenfrei, 2010 WL 395243 (N.D. Ohio Jan. 27, 2010)

Dec 01 2010

Key Insight: Where issues of material fact existed as to the willfulness of defendant?s destruction of potentially relevant ESI and as to whether such destruction ?disrupted? plaintiff?s case, court denied defendant?s motion for summary judgment as to its claim of spoliation and denied plaintiff?s request for an adverse inference as to claims 1 through 4, but indicated its willingness to entertain a motion for an appropriate jury instruction at trial

Nature of Case: Breach of confidentiality agreement and related claims, independant cause of action for spoliation

Electronic Data Involved: ESI

In re Subpoenas, 692 F.Supp.2d 602 (W.D.Va. 2010)

Dec 01 2010

Key Insight: Where recipient of government subpoenas refused to comply on grounds of unreasonableness and burden, court approved government?s offer to reduce number of custodians from 13 to 3 (out of a workforce of approximately 72,000) and ordered recipient to produce live emails and snapshot of emails from backup tapes for each of the years between 2002 and 2008 which, the court noted, had been preserved for other litigation

Nature of Case: Government investigation

Electronic Data Involved: Email, snapshot of email from backup tapes

Global Naps, Inc. v. Verizon New England d/b/a Verizon Mass., 603 F.3d 71 (1st Cir. 2010)

Dec 01 2010

Key Insight: District court did not abuse discretion in ordering default judgment as sanction for discovery violations where evidence indicated that defendants lied to the court regarding its record keeping practices and the timing of their alleged ?loss? of financial records and withheld and destroyed financial records, including intentionally wiping relevant evidence from a hard drive using scrubbing software

Nature of Case: Litigation arising from defendants’ failure to pay access charges for services provided

Electronic Data Involved: ESI

Clark v. Randalls Food, 317 S.W.3d 351 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in denying motion for sanctions where, despite defendant?s failure to preserve all relevant portions of a surveillance video tape, the court found the tape would not have revealed information necessary to establish defendant?s knowledge of the allegedly dangerous condition at issue and thus, there was no prejudice to plaintiff

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance video

Griffin v. State, 995 A.2d 791(Md. Ct. Spec. App. 2010)

Dec 01 2010

Key Insight: Finding ?no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic content – by their content and context?, court found that a paper copy of a MySpace profile page was properly authenticated by the presence of a photograph of the alleged owner of the profile on the printed page, the presence of unique identifiers such as her date of birth, number of children, and use of the admitted nickname of her boyfriend, ?Boozy?, and by the testimony of an officer that he believed the profile belonged to the alleged owner for the reasons previously listed (presence of unique identifiers, etc.)

Nature of Case: Criminal

Electronic Data Involved: MySpace profile page

Dutch v. United States, 997 A.2d 685 (D.C. 2010)

Dec 01 2010

Key Insight: Court found admission of two documents derived from information stored on computers as ?business records? was proper where evidence established the data was created and stored in the relevant information system at the time of the transaction at issued, where the data was created and used by merchants in usual course of their business, and where sufficient testimony was presented to ?give adequate reason to trust the authenticity of the documents?

Nature of Case: Conviction for attempted uttering (cashing a forged check)

Electronic Data Involved: Hard copy business records “derived from information stored on computers”

Catagory:Case Summaries