Case Summaries – Page 246 – Electronic Discovery Law

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

G2 Prod., LLC v. Does 1-83, 2010 WL 253336 (D.D.C. Jan. 21, 2010)

Dec 01 2010

Key Insight: Court granted Motion for Leave to Take Expedited Discovery for the purpose of discovering the identities of defendants, including their true name, address, phone number, etc. because good cause existed for such discovery where identification of the defendants was necessary for the case to progress; court ordered subpoenaed ISPs to notify the subscribers in question to provide an opportunity to quash, but ordered ongoing preservation of the subpoenaed information until resolution of any such motion

Nature of Case: Copyright infringement

Electronic Data Involved: Name of ISP subscribers

Gordanier v. Montezuma Water Co., 2010 WL 935665 (D. Colo. Mar. 11, 2010)

Dec 01 2010

Key Insight: Court denied motion to compel production of ESI from the computer of plaintiff?s supervisor where plaintiff was aware of the existence of the computer and its email capabilities prior to filing suit but nonetheless agreed in the scheduling order that no electronic discovery would be required and thus could not show ?good cause? to amend the order

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI from hard drive of plaintiff’s supervisor

Merck Eprova AG v. Gnosis S.P.A., 2010 WL 1631519 (S.D.N.Y. Apr. 20, 2010)

Dec 01 2010

Key Insight: Court found defendants were ?at least? grossly negligent for failing to issue a written litigation hold and ordered defendants to pay the costs of plaintiff?s motion to compel as well as a $25,000 fine; in devising its sanction, the court considered defendants other conduct, including defendants? deficient search for responsive documents, defense counsel?s lack of meaningful supervision in the discovery process, and defendants? decision to withhold certain documents deemed insufficiently important, among other things

Nature of Case: Lanham Act/ mislabeled ingredients

Electronic Data Involved: Emails

State v. Thompson, 777 N.W.2d 617 (N.D. 2010)

Dec 01 2010

Key Insight: Where the rules of evidence require authentication sufficient to establish that the evidence in question is what the proponent claims, admission of image of text message was no abuse of discretion where defendant did not argue that the image was not an accurate reflection of the message and where the complainant (victim) and defendant established by their testimony that defendant?s cell phone number and signature were on the image and provided other circumstantial evidence to establish that the image was what it was claimed to be

Nature of Case: Criminal prosecution for simple assault

Electronic Data Involved: Image of text message

Camesi v. Univ. Pittsburgh Med. Ctr., 2010 WL 2104639 (W.D. Pa. May 24, 2010)

Dec 01 2010

Key Insight: In an order addressing a number of discovery concerns, court ordered the parties to meet and confer to resolve ESI disputes and ordered defendants to ?at a minimum? ensure that all files stored in electronic format were produced in a ?searchable? format and to re-produce ESI in native format absent a showing of undue hardship or expense; court ordered defendants to produce metadata and indicated willingness to excuse plaintiff?s failure to request it earlier in light of plaintiff?s ?repeated, good faith requests to meet and confer?

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: ESI

People v. Spykstra, 234 P.3d 662 (Colo. 2010)

Dec 01 2010

Key Insight: Reversing the order of the trial court, the Supreme Court established 5 part test to challenge the issuance of a pretrial subpoena and quashed the subpoenas issued by defendant where, by ordering the relevant individuals to submit their computers to inspection by defendant?s expert, the trial court ?improperly converted the subpoenas into the functional equivalent of search warrants? and where defendant failed to establish any factual basis demonstrating a reasonable likelihood that the emails sought existed or that they contained material evidence

Nature of Case: Criminal

Electronic Data Involved: Emails, Contents of hard drives

Language Line Servs., Inc. v. Language Servs. Assocs., LLC, 2010 WL 2764714 (N.D. Cal. July 13, 2010)

Dec 01 2010

Key Insight: Upon plaintiff?s showing of a likelihood of success in its claims and a possibility of irreparable harm absent judicial intervention, the court granted plaintiff?s motion for a preliminary injunction precluding defendants from using, copying or divulging plaintiff?s confidential information and from destroying or erasing such information, among other things; upon the parties? agreement, the court also appointed a Special Master to preside over all proceedings regarding the preservation of plaintiff?s information in the possession of defendants, the forensic imaging of defendant?s computer systems and servers to determine the extent of plaintiff?s information in their possession, and defendant?s communications with any of plaintiff?s customers appearing in the alleged confidential information

Nature of Case: Misappropriation of Trade Secrets and related claims

Electronic Data Involved: ESI

Gallagher v. Magner, 2010 WL 3419820 (8th Cir. Sept. 1, 2010)

Dec 01 2010

Key Insight: District court upheld denial of sanctions for defendants? failure to preserve emails and other ESI where plaintiffs failed to establish the prejudice resulting from the failure to preserve by presenting nothing more than speculation and by failing to pursue other possible sources of discovery (which the court characterized as ?incongruent with Plaintiff?s claim of prejudice?) and where plaintiffs failed to demonstrate that defendant intentionally destroyed or withheld evidence to suppress the truth

Nature of Case: Claims alleging disparate treatment and impact arising from City’s enforecement of housing codes

Electronic Data Involved: Emails, other ESI

Beluga Shipping GMBH & Co. KS ?Beluga Fantastic? v. Suzlon Energy, Ltd., 2010 WL 3749279 (N.D. Cal. Sept. 23, 2010)

Dec 01 2010

Key Insight: Court granted non-party?s Google Inc.?s Motion to Intervene to oppose Defendant?s request for leave to conduct discovery and to subpoena from Google the contents of two cross-defendants? accounts and other, related information where production of the emails themselves was barred by the Electronic Communications Privacy Act absent consent from the accounts owners, and thus it was futile to issue subpoenas; court granted in part defendant?s petition for leave to conduct discovery and ordered Google to disclose documents reflecting when the accounts were created, the names of the account holders, and the countries from which the accounts were created ? information not precluded from disclosure by the ECPA ? and instructed Google to preserve the snapshot of the emails in the account

Nature of Case: Petition for leave to conduct discovery in foreign judicial proceedings

Electronic Data Involved: Information related to Google account holders, and contents of accounts (emails)

Catagory:Case Summaries