Case Summaries – Page 244 – Electronic Discovery Law

Partminer Worldwide, Inc. v. Siliconexpert Techs., Inc., 2010 WL 4004164 (D. Colo. Sept. 23, 2010)

Dec 01 2010

Key Insight: Based upon suspicious timing of the disappearance of ESI, the court inferred that evidence had been destroyed in bad faith by a person who knew that it would ?very well reveal information Defendants did not want revealed? and ordered an adverse inference instruction to the jury at trial, that plaintiff should be permitted to amend its claims to add a claim for exemplary damages based on the adverse inference, that defendants pay plaintiff?s costs and fees, and that defendants make unredacted mirror images of the hard drives of each employee of the corporate defendant at defendants? expense, to be delivered to plaintiff by a date certain; hard drives were covered by a previously entered protective order

Electronic Data Involved: Email, ESI

Dana Ltd. v. American Axle & Mfg. Holdings, Inc., 2010 WL 5394885 (W.D. Wash. Dec. 22, 2010)

Dec 01 2010

Key Insight: Court granted defendant?s motion to clarify the agreed preliminary injunction order where, following entry of the agreement, defendant determined that the broad language addressing preservation created a cost prohibitive obligation that was broader than necessary to protect the plaintiff and agreed to enter an order reflecting defendant?s proposed revision which was more specific regarding what must be preserved

Electronic Data Involved: ESI

Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721 (D. Colo. Feb. 8, 2010)

Dec 01 2010

Key Insight: Where defendants bore the burden of persuasion when asserting that ESI was inaccessible because of undue burden or cost and where defendants? supported their claim of inaccessibility with only one declaration which lacked specific information regarding defendants? storage practices, the number of back-up or archival systems that would need to be searched, or defendants? capability to retrieve information from those back-up or archival systems, the court denied defendants? Motion for a Protective Order

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition, unjust enrichment and fraud

Electronic Data Involved: ESI

Covad Commc?n Co. v. Revonet, Inc., 267 F.R.D. 14(D.D.C. 2010)

Dec 01 2010

Key Insight: Court declined to compel production of non-email ESI in native format where defendant previously produced the information sought in hard copy, reasoning that native production is not required by the rules and that the documents, previously produced in hard copy, were in a sufficiently usable format absent a showing that the metadata would ?yield an answer that the hard copy will not?; court also recognized obligation to seek ?just, speedy, and inexpensive? adjudication and to limit burdensome discovery where defendant represented significant hardship to re-produce in native format

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: ESI

Shlala v. Catholic Health & Human Servs., 2010 WL 1655869 (N.J. Super. Ct. App. Div. Apr. 23, 2010)(Unpublished)

Dec 01 2010

Key Insight: Trial court did not err in dismissing plaintiff?s claim of fraudulent concealment arising from the destruction of the hard drive plaintiff utilized while employed by defendant where plaintiff failed to specifically request the preservation or production of the computer?s contents until three years after he was terminated (despite filing a complaint and requesting discovery) and where plaintiff failed to establish any of the five elements necessary to support an action for fraudulent concealment, including failing to establish defendants? duty to preserve, the materiality of the evidence destroyed, and the inability to obtain the evidence from another source, among other things

Nature of Case: Employment litigation

Electronic Data Involved: ESI on hard drive utilized by plaintiff while employed by defendant

N. Am. Rescue Prods., Inc. v. Bound Tree Med., LLC, 2010 WL 1873291 (S.D. Ohio May 10, 2010)

Dec 01 2010

Key Insight: Addressing several privilege-related issues upon plaintiff?s objections to the magistrate?s order compelling production, court found inadvertently produced email communications resulted in waiver of attorney-client privilege where plaintiffs failed to take reasonable steps to prevent disclosure and to rectify the error upon discovery of the production, noting specifically that plaintiff was aware of the production for a matter of months before taking action only after defendant?s motion to compel

Nature of Case: Misappropriation of trade secrets, false advertising, trademark infringement and related claims

Electronic Data Involved: Privileged emails

Current Med. Directions LLC v. Salomone, 2010 WL 714686 (N.Y. Sup. Ct. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court found attorney-client privilege did not protect emails residing on defendant?s server which, along with other assets, was sold to plaintiff in the underlying acquisition where defendant made no effort to delete the emails prior to the acquisition and failed to independently discover that the privilege emails had been produced to him as part of plaintiff?s production, and where evidence indicated that defendant knew, at least generally, the privileged documents had been inadvertently produced but did not seek their return

Nature of Case: Claims arising following acquisition of defendant’s company and his subsequent termination

Electronic Data Involved: Privileged emails

Haskins v. State, 2010 WL 2524797 (Tex. Ct. App. June 24, 2010)

Dec 01 2010

Key Insight: Relying on precedent stating that ?computer-generated data is not hearsay because there is no human declarant?, appellate court held that trial court did not abuse its discretion in admitting a document detailing the number of times a particular coupon had been scanned where testimony established that the information in the printout was automatically generated, that the information was safe from alteration while stored in the relevant computer system, that the information had not been altered, and that the computer from which the information was generated was not malfunctioning

Nature of Case: Theft

Electronic Data Involved: Printout of computer generated data

Jicarilla Apache Nation v. United States, 93 Fed. Cl. 219 (Fed. Cl. 2010)

Dec 01 2010

Key Insight: Pursuant to Fed. R. Evid. 502(d), court entered protective order controlling the scope and production format of ESI as well as establishing that inadvertent disclosure would not result in the waiver of attorney-client privilege or work-product protection and establishing a protocol for how to notify opposing counsel of inadvertent production and counsel?s appropriate response

Nature of Case: Tribal trust case

Electronic Data Involved: ESI

In re Stern, 321 S.W.3d 828 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: On petition for a writ of mandamus, the Supreme Court held that the trial court abused its discretion in ordering petitioner to produce communications between himself and nearly forty individuals where such discovery was not narrowly tailored to avoid the inclusion of ?tenuous information irrelevant to the establishment of jurisdiction? (the subject of petitioner?s special appearance) and held that the trial court abused its discretion in appointing a special master to conduct a forensic examination of petitioner?s hard drive where there was no showing that petitioner had defaulted in his discovery obligations, where there was no showing that a search of the hard drive would recover relevant information (particularly in light of petitioner?s use of web-based email), where the special master was appointed without following the procedures called for by the Texas Rules of Civil Procedure, where the special master?s broad authorization to search the hard drives (including the authority to choose search terms) amounted to an ?impermissible fishing expedition?, and where the trial court required no showing of the feasibility of retrieving the data by the party requesting the search

Nature of Case: Defamation

Electronic Data Involved: Emails, hard drive

Catagory:Case Summaries