Case Summaries – Page 244 – Electronic Discovery Law

Susquehanna Commercial Finance, Inc. v. Vascular Res., Inc., No. 1:09-CV-2012, 2010 WL 4973317 (M.D. Pa. Dec. 1, 2010)

Dec 01 2010

Key Insight: Despite a prior agreement between plaintiff?s counsel and former defense counsel that parties would produce documents on disc or in hard copy, court ordered production of ESI in electronic format citing the ?halting nature of this action since it commenced, the questions that have come up regarding the sufficiency of Plaintiff?s production and efforts to identify responsive documents, and the absence of any showing that responding [to] Defendants? request for ESI would be unduly burdensome?

Nature of Case: Action to recover monies advanced

Electronic Data Involved: ESI

Jeanes-Kemp, LLC v. Johnson Controls, Inc., 2010 WL 3522028 (S.D. Miss. Sept. 1, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for protective order as to two inadvertently produced privileged documents where the production was inadvertent, where discovery was reviewed by three attorneys prior to production and thus efforts to prevent disclosure were reasonable, and where upon notice of disclosure, counsel took immediate steps to retrieve the documents; court declined to sanction defense counsel for threatening use of the inadvertently disclosed documents where plaintiff?s motion for protective order was granted and where defendants had not yet had the opportunity to use the documents as threatened

Electronic Data Involved: Inadvertently produced emails

Veolia Transp. Servs., Inc. v. Does I-VII, 2010 WL 5151323 (D. Ariz. Dec. 13, 2010)

Dec 01 2010

Key Insight: Court granted motion to conduct pre-service discovery for the purpose of ascertaining the identity of the Doe defendants and, upon the parties agreement, ordered that a third-party expert conduct the discovery

Electronic Data Involved: Identity of Doe defendants

Irwin v. Onondaga County Res. Recovery Agency, 895 N.Y.S.2d 262 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Appellate court modified amended order of the lower court and granted plaintiff?s petition to compel production of certain electronically stored photographs and the associated ?system? metadata in response to plaintiff?s FOIL request; court was careful to limit scope of holding to the present case such that the opinion did not address ?the issue concerning whether and when metadata of any nature is subject to disclosure under the CPLR? (Civil Practice Law Rules)

Nature of Case: Freedom of Information request

Electronic Data Involved: Electronically stored photographs and associated “system” metadata

In re Venom. Inc., 2010 WL 892203 (Bankr. E.D. Pa. Mar. 9, 2010)

Dec 01 2010

Key Insight: Court found plaintiff primarily responsible for breakdown of discovery for failing to produce requested ESI or to provide satisfactory explanation of the problems precluding production but declined to order exclusion of all evidence supporting ?diminution in value? claim where plaintiff produced substantial financial information and produced the requested ESI in hard copy, where plaintiffs violated no court order, where the failure to produce was temporally limited to two ?short periods of time?, and where plaintiffs apparent ability to produce the requested ESI would prevent any prejudice; court gave defendant option of receiving ESI on ?searchable CD? or receiving the computer on which the ESI was stored for expert examination

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Financial data in electronic format

Palm Bay Int., Inc. v. Marchesi Di Barolo S.P.A., 2010 WL 1688203 (E.D.N.Y. Apr. 26, 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to produce 15 emails (which were discovered in a productions from third parties), court declined to find that plaintiff had waived its objections to defendant?s request but ordered plaintiff to file an affidavit from a representative with first hand knowledge of how the search was undertaken providing ?a specific explanation of what information was discovered concerning how and why the email at issue were not picked up during the course of that search? and noted that defendant was free to raise the failure to produce those emails with the witnesses at trial

Nature of Case: Breach of contract

Electronic Data Involved: Emails

United States v. Renzi, 2010 WL 1417475 (E.D. Mich. Apr. 7, 2010)

Dec 01 2010

Key Insight: Where defendants accused the government of spoliation of all disks (originals and copies) containing relevant data from a particular computer system and requested dismissal of the indictment against them as a result, court denied the motion for dismissal upon determining that defendants failed to establish the materiality of the data such that its destruction (intentional or otherwise) was a constitutional violation and where a complete copy of the data existed on a backup tape seized later in the investigation

Nature of Case: Criminal – Mail fraud

Electronic Data Involved: Data stored on JENKON system

Zynga Game Net. v. Williams, 2010 WL 2077191 (N.D. Cal. May 20, 2010)

Dec 01 2010

Key Insight: Court granted motion for leave to serve subpoenas on third parties (GoDaddy, Microsoft Office Live, and PayPal) for purposes of obtaining information sufficient to identify and locate suspected copyright infringers but ordered plaintiff to narrow the scope of the subpoenas for the limited purpose of identification

Nature of Case: Copyright infringement

Electronic Data Involved: Information sufficient to identify suspected defendants

Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island, 996 A.2d 684 (R.I. 2010)

Dec 01 2010

Key Insight: Supreme court affirmed admission of ?membership data reports? generated from plaintiff?s database as business records and rejected defendant?s arguments that they lacked the necessary guarantees of trustworthiness where the records were relied upon in the usual course of business and where evidence indicated the software had been calibrated to ensure accuracy, among other things, and where the records were properly authenticated by testimony regarding the manner in which they were created and evidence the system had been producing accurate results

Nature of Case: Breach of contract

Electronic Data Involved: ?Membership data reports? generated from plaintiff?s database

Univ. Sports Publ?ns Co. v. Playmakers Media Co., 2010 WL 2802322 (S.D.N.Y. July 14, 2010)

Dec 01 2010

Key Insight: Where the issue before the court was whether defendant had intentionally accessed plaintiff?s database without authorization, court relied on an adverse inference arising from defendant?s intentional destruction of a laptop which would have provided key evidence and held that a genuine issue of material fact existed such that summary judgment was not appropriate

Nature of Case: Alleged violations of Computer Fraud and Abuse Act

Electronic Data Involved: Laptop

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