Case Summaries – Page 244 – Electronic Discovery Law

Phillip M. Adams & Assoc., LLC v. Fujitsu Ltd., 2010 WL 1901776 (D. Utah May 10, 2010)

Dec 01 2010

Key Insight: Addressing a number of issues related to the format and organization of plaintiff?s production and a motion to compel plaintiff?s response to interrogatories, court ordered the production of ESI in its native format where plaintiff failed to object to a request for the same but, where native production was not specified, plaintiff was allowed to select the form of production; unable to determine whether the burden of production of computer data from all computers used by plaintiff over a period of many years would outweigh the value of production, court ordered plaintiff to produce a detailed inventory of each computer and to allow sampling of one or two computers of defendant?s choice in order to determine the need for additional discovery

Nature of Case: Patent infringement

Electronic Data Involved: ESI, hard drives

Aponte-Navedo v. Nalcom Chem. Co., 268 F.R.D. 31 (D.P.R. 2010)

Dec 01 2010

Key Insight: Upon plaintiff?s first motion to compel, the court found that while information regarding defendant?s information technology department and the hardware and software used by defendant is discoverable, plaintiff?s requests were overly broad and the court could not compel responses to the interrogatories as drafted but ordered defendants to identify the computer program or software used to created or transmit the already produced documents and for defendants to produce native documents with metadata intact

Nature of Case: Employment discrimination

Electronic Data Involved: Information regarding defendant’s information technology department, ESI

Kandel v. Brother Int?l Corp., 683 F. Supp. 2d 1076 (C.D. Cal. 2010)

Dec 01 2010

Key Insight: Court found production of privileged documents was ?inadvertent? within the meaning of the parties? stipulated protective order and that the privilege was therefore not waived where defendant took reasonable steps to prevent the inadvertent production, including creating and following a document review protocol, identifying privileged names to assist in the segregation of potentially privileged documents, and requesting that certain key words searches be used to identify potentially privileged information and where defendants took prompt steps to retrieve the privileged documents upon discovering their disclosure; district court affirmed the order, noting that the review was ?obviously complicated? by the fact that ?many or most of the documents were in Japanese and had to be obtained from Japan?

Nature of Case: Putative class action alleging unfair business practices and related claims in connection with design of toner cartridges

Electronic Data Involved: Inadvertently produced ESI

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

United States v. Nagle, 2010 WL 3896200 (M.D. Pa. Sept. 30, 2010)

Dec 01 2010

Key Insight: Applying the four factor test from In re Asia Global Crossing Ltd., court found that a memorandum saved on the hard drive of a work-issued laptop was protected by attorney-client privilege where, despite the existence of a policy warning that internet and email was not private, there was no policy banning personal use of work computers, there was no evidence that the employer ever monitored employees? use of work computers, there was limited access by others to the relevant employee?s laptop and such access was only with that employee?s permission, and where there was no testimony that the employee was aware of the employer?s policy

Nature of Case: Criminal charges

Electronic Data Involved: Privileged document saved on work-issued laptop

People v. Jobe, 2010 WL 4106708 (Cal. App. Ct. Oct. 20, 2010)

Dec 01 2010

Key Insight: Trial court did not err by refusing to dismiss based on prosecutions failure to preserve potentially exculpatory video surveillance tape where the tape was never in the possession of the State but rather remained in the possession of the market and where the exculpatory value of the video was not apparent, and thus there was no evidence of bad faith

Nature of Case: Attempted robbery

Electronic Data Involved: Video surveillance footage

Smith v. Home Depot USA, Inc., 2010 WL 4641157 (D. Idaho Nov. 5, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to compel ?event description? information contained in defendant?s database to correspond with a previously produced spreadsheet regarding past claims and rejected defendant?s objections of irrelevance and undue burden, particularly in light of testimony which indicated the relative ease of collection and production based on the efforts previously undertaken in creating the related spreadsheet

Nature of Case: Product liability

Electronic Data Involved: ESI contained in database

Living Scriptures, Inc. v. Doe(s), 2010 WL 4687679 (D. Utah. Nov. 10, 2010)

Dec 01 2010

Key Insight: Court granted motion for expedited discovery to discover the identity of the alleged copyright infringers for the purposes of commencing litigation and for seeking a preliminary injunction noting that courts have ?routinely? allowed such discovery and that the information sought was ?transitory in nature? and necessary to initiate the action

Nature of Case: Copyright infringement

Electronic Data Involved: Does’ identities

CE Design Ltd. v. Cy?s Crabhouse North, Inc., 2010 WL 3327876 (N.D. Ill Aug. 23, 2010)

Dec 01 2010

Key Insight: Court vacated prior order designating contents of relevant hard drive confidential where good cause was not established by the proffered reasons for the designation; addressing defendant?s motion to disqualify plaintiff?s counsel and bar its expert for failure to timely supplement discovery by producing a relevant hard drive, the court ruled that defendant failed to offer new information that would justify such a sanction (because this issue was previously considered) where the newly-discovered documents (on the late-produced hard drive) did not change the court?s analysis as to numerosity and certification of the class and where the expert was given the opportunity to supplement his report

Nature of Case: Violation of Telephone Consumer Protection Act

Catagory:Case Summaries