Case Summaries – Page 244 – Electronic Discovery Law

Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y. 2010)

Dec 01 2010

Key Insight: For ?defendant?s recalcitrance in meeting its discovery obligations?, namely refusing to produce certain discovery on the basis of foreign secrecy laws (a justification previously rejected by the court), the court imposed severe sanctions, including adverse inference instructions and an order precluding the presentation of certain evidence

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Meridian Fin. Advisors Ltd. v. Pence, 2010 WL 2772840 (S.D. Ind. July 12, 2010)

Dec 01 2010

Key Insight: For the receiver?s failure to disclose the existence and specific location of relevant emails by the required initial disclosure deadline pursuant to Rule 26, the court imposed sanctions and precluded the receiver?s use of such ESI at trial; for the receiver?s failure to disclose its access to defendants? privileged communications (including accessing, through the actions of a third party, the personal and privileged emails of one defendant by accessing his personal email accounts without his knowledge), the court imposed monetary sanctions, including payment of the costs of investigating and bringing the motion as well as payment of one defendant?s attorney?s fees during the time his co-defendant provided the receiver with access to his privileged communications

Nature of Case: Receiver filed suit against former officers and employees for myriad of claims, including breach of fiduciary duty, unfair competition, civil conspiracy, etc.

Electronic Data Involved: Emails

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

Dec 01 2010

Key Insight: Where the original computer seized from defendant was ?destroyed as the result of a miscommunication between divisions of the federal government? (computer was destroyed by the Asset Forfeiture Division working independently of the attorneys handling the criminal case), the District Court did not err in finding that the computer was not destroyed in bad faith and that such destruction did not violate the defendant?s due process rights

Nature of Case: Possession and receipt of child pornography

Electronic Data Involved: Computer/hard drive seized as evidence

Moore v. Shands Jacksonville Med. Ctr., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010)

Dec 01 2010

Key Insight: Where, absent specification of the format of production from either party, defendant produced video surveillance footage in what it considered a ?reasonably usable? format which required particular software for viewing, and where that software was available for free download on the internet, the court indicated it was ?not sympathetic? to plaintiff?s claims of undue burden as to the downloading the software and found that defendants had produced the video in a reasonably usable form

Nature of Case: Employment discrimination

Electronic Data Involved: Surveillance footage

Patrick Collins, Inc. v. Does 1-1219, 2010 WL 5422569 (N.D. Cal. Dec. 28, 2010)

Dec 01 2010

Key Insight: Court granted motion for expedited discovery to allow plaintiff to serve subpoenas on certain Internet Service Providers to obtain information identifying the Doe Defendants so that plaintiff could complete service of process

Nature of Case: Copyright Infringement

Electronic Data Involved: Name of ISP subscriber

Stearman v. State, No. 29 A02-1002-CR-214, 2010 WL 59827 (Ind. Ct. App. Aug. 11, 2010)

Dec 01 2010

Key Insight: Court held transcript of chat cut and pasted into word document in its entirety was properly authenticated where the officer testified that the transcript was a ?true and accurate and full and complete copy of the exact chat [he] had with the defendant?; Best Evidence Rule was satisfied where ?any printout or other output readable by sight shown to reflect the date accurately is an ?original?? in the context of information stored in a computer and where there was no evidence that the original messages, which were removed from the computer when the instant message program was removed, were erased in bad faith

Nature of Case: Solicitation of a minor

Electronic Data Involved: Printed transcripts of instant messages

Lorentz v. Sunshine Health Prods., Inc., 2010 WL 1856265 (S.D. Fla. May 10, 2010)

Dec 01 2010

Key Insight: Court granted motion for protective order where plaintiff?s request for inspection of defendants? hard drives was found ?per se overbroad and unduly burdensome when balanced against the need cited? and where plaintiff failed to explain whether a less intrusive option had been attempted, ?as per Rule 34?; despite granting the motion, court noted willingness to entertain a motion to inspect a particular hard drive if provided with a protocol for such inspection indicating a method to protect the non-responsive data

Diocese of Harrisburg v. Summix Dev. Co., 2010 WL 2034699 (M.D. Pa. May 18, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference in favor of defendant where plaintiff failed to preserve backup tapes which ?may have contained emails with evidence to support defendants? claims?, despite a duty to do so

Electronic Data Involved: Backup tapes

Catagory:Case Summaries