Case Summaries – Page 245 – Electronic Discovery Law

ANZ Advanced Techs., LLC v. Bush Hog, LLC, No. 09-00228-KD-N, 2010 WL 3699917 (S.D. Ala. Sept. 9, 2010)

Dec 01 2010

Key Insight: Court declined to reconsider its prior order directing plaintiff to produce certain hard drives and other data storage devices for forensic inspection where plaintiff failed to establish that such production was prohibited by Indian law and where plaintiff offered no evidence to rebut the court?s prior determination that plaintiff?s behavior ?cast serious doubt on the authenticity of any document produced? by plaintiff such that actual production of the devices was warranted

Electronic Data Involved: Hard drive, data storage devices

Fatpipe Networks India Ltd. v. Xroads Networks, Inc., 2010 WL 129790 (D. Utah Jan. 8, 2010)

Dec 01 2010

Key Insight: Where evidence indicated that defendant had not produced all versions of its relevant source code despite a court order and had been untruthful as to its maintenance of certain records, court granted plaintiff?s motion to vacate its scheduling order and ordered defendant to take specific action, including 1) taking specific measures to ensure preservation of relevant evidence, 2) taking ?all reasonable measures to obtain from third parties?including past or present customers? evidence of its software development and version history, 3) identifying all computers on which anyone had engaged in software development since 2006 and all devices which ?ha[d] at any time contained? data reflecting such activity, and 4) producing all prior or current versions of software and source code for each relevant device, among other things

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Victor v. R.M. Lawler, 2010 WL 521118 (M.D. Pa. Feb. 9, 2010)

Dec 01 2010

Key Insight: Court deferred judgment regarding motion for spoliation sanctions for missing video surveillance tapes of the relevant ?cell extraction? pending defendant?s production of prison policies regarding the proper preservation of such video where the court regarded the ?question of spoliation? to be ?closely intertwined with the issue of whether the defendants followed their own operations procedures in preserving evidence?

Nature of Case: Prisoner’s civil rights lawsuit

Electronic Data Involved: Video surveillance tape

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

Cencast Servs., LP v. United States, 2010 WL 3488806 (Fed. Cl. Ct. Sept. 3, 2010)

Dec 01 2010

Key Insight: Where data was lost as the result of the theft of a laptop and where hard copy documents were accidentally shredded despite efforts to preserve them safely, the court denied plaintiffs? motion for an adverse inference where defendant was ?at most? negligent and an adverse inference would be ?disproportionate to the offense?, where evidence was presented that indicated the requested presumption arising from the adverse inference was untrue, and where plaintiffs failed to demonstrate significant prejudice as the result of the loss

Nature of Case: Tax related claims

Electronic Data Involved: Contents of laptop, hard copy

Catagory:Case Summaries