Case Summaries – Page 249 – Electronic Discovery Law

Chevron Corp. v. Stratus Consulting, Inc., 2010 WL 3489922 (D. Colo. Aug. 31, 2010)

Dec 01 2010

Key Insight: Court granted petitioner?s motion to compel production of subpoenaed information in native format, including re-production of materials already produced in .pdf format, where, despite respondent?s objections, the court determined the underlying metadata could be probative, but ordered petitioner to bear the cost where the subpoena had been ?less than clear? regarding the format of production and where respondents? claims of undue burden ?carrie[d] some legitimacy?; court?s opinion acknowledged respondent?s argument regarding the inability to Bates stamp native documents and ordered that the documents be Bates-stamped ?only as technologically possible?

Electronic Data Involved: ESI

Response Personnel, Inc. v. Aschenbrenner, 909 N.Y.S.2d 433 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where a lower court denied plaintiff?s motion for a protective order and ordered the production of tax returns and other documents in electronic format at plaintiff?s expense, the appellate court affirmed the denial of the protective order and the order compelling electronic production but found that requiring plaintiff to bear the costs imposed an undue burden where ?generally, the costs of production is borne by the party requesting the production, and the cost of creating electronic documents here would not be inconsequential?

Electronic Data Involved: Tax returns and other documents in electronic form

District Court Declines to Order Incarceration for Defendant’s Bad Faith Spoliation but Orders Monetary Sanction of $337,796.37

Nov 30 2010

Victor Stanley, Inc. v. Creative Pipe, Inc. ("Victor Stanley II")

As previously summarized on this blog, defendant Mark Pappas, President of Creative Pipe, Inc., was ordered to “be imprisoned for a period not to exceed two (2) years, unless and until he [paid] to Plaintiff the attorney’s fees and costs that will be awarded…” as a sanction for willful, bad faith discovery violations which the Magistrate Judge ruled would be treated as contempt of the Court. On defendants’ appeal, the District Court Judge declined to adopt the Magistrate Judge’s order regarding incarceration:

“No Matter How Inadequate a Party’s Preservation Efforts May Be … Sanctions are Not Warranted Unless there is Proof that Some Information of Significance has Actually Been Lost”

Nov 19 2010

Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010)

Addressing defendant’s motion for sanctions, the court found that although “plaintiffs did not engage in model preservation of electronically stored information in this case,” they were not subject to sanctions absent evidence that any relevant information had actually been destroyed. Significantly, in reaching this decision, the court took issue with certain aspects of the often-cited Pension Committee decision issued in the same jurisdiction earlier this year as well as with the discovery standard of “reasonableness and proportionality” set forth in another cited opinion, Rimkus v. Cammarata.

Finding No Duty To Preserve, Court Denies Motion for Sanctions

Nov 19 2010

Huggins v. Prince George’s Cnty, 750 F. Supp. 2d 549 (D. Md. 2010)

In this litigation arising from a dispute between plaintiff, a landowner, and the County regarding the plaintiff’s use of her land, the court found that the defendant was not subject to sanctions for the destruction of a former employee’s email pursuant to County policy where no duty to preserve existed at the time of their destruction.

Court Imposes Adverse Inference for Failure to Preserve Text Messages Related to Criminal Investigation

Nov 03 2010

United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010) (Not for Publication)

For the Government’s failure to preserve text messages sent between investigating agents and a cooperating witness, the court found sanctions were warranted and ordered that the jury would received a “spoliation charge” allowing (but not requiring) it to infer that the deleted messages were favorable to the defendants.

Where “Entire Computer and Component Manufacturer’s Industry” was on Notice of Potential for Litigation, Defendant’s Failure to Preserve Warrants Sanctions

Oct 28 2010

Phillip M. Adams & Assoc., LLC v. Winbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16, 2010)

In this ongoing multi-defendant patent litigation, the court has previously addressed allegations of spoliation. In March 2009, the court found sanctions were warranted for defendant ASUS Computer International’s violation of its duty to preserve which arose in the “1999-2000 environment” of litigation surrounding the technology to resolve a defect in a particular floppy disk controller (“FDC”). In this case, the court reaffirmed its earlier holding regarding the trigger for defendants’ duty to preserve, namely that “[i]n late 1999 the entire computer and component manufacturer’s industry was put on notice of a potential for litigation regarding defective floppy disk components (“FDCs”) by the well publicized settlement in a large class action lawsuit against Toshiba.” Accordingly, for defendant MSI’s failure to uphold its duty to preserve, the court found sanctions were warranted.

Court Orders Production of Plaintiff’s User Names and Passwords for Social Network Accounts

Oct 21 2010

McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010)

In this personal injury case, defendant Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts and requested production of his user names, log-in names, and passwords. Plaintiff objected, arguing that the information was confidential. Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days and that plaintiff should not take steps to delete or alter the existing information on his social network accounts.

Metadata is Subject to Disclosure Pursuant to Washington’s Public Records Act

Oct 15 2010

O’Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010)

In this case of first impression, and only the second of its kind in the country, the Supreme Court of Washington held that metadata is subject to disclosure pursuant to Washington’s Public Records Act (“PRA”).

Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production

Oct 14 2010

Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010)

Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information. Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years. Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost. Defendants also objected to the temporal scope of discovery. Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.

Catagory:Case Summaries