Case Summaries – Page 245 – Electronic Discovery Law

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

Smith v. Mpire Holdings, LLC v. 2010 WL 3294184 (M.D. Tenn. Aug. 12, 2010)

Dec 01 2010

Key Insight: Court denied motion to compel defendants to sign releases authorizing ISPs to disclose ?all account information, electronic data, information and emails associated with numerous internet website domains? where ?given the nature of the transactions? at issue, such information would be likely to involve the confidential matters of numerous third parties and where the court was unable to protect those parties from ?unauthorized disclosure of their confidential records and information?; court analysis included finding that defendants had control of the electronic information in the custody of the ISPs ?because, according to federal statute, they may consent to grant access to their information?

Electronic Data Involved: All account information, electronic data, information and emails associated with numerous internet website domains

Silverman v. Shaoul, 913 N.Y.S.2d 870 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Court held that ?precedent shows that the requesting party bears the cost of electronic discovery when the data sought is ?not reasonably available? upon a showing of undue burden and denied defendant?s order to show cause to compel plaintiffs to pay the costs where defendants data was neither archived nor deleted but simply stored in a number of places and interspersed with other business documents

Electronic Data Involved: ESI

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

Catagory:Case Summaries