Catagory:Case Summaries

Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)

In this case, as the result of using the “reply all” function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant’s counsel sent an email to opposing counsel demanding the email be deleted.  Opposing counsel refused.  Addressing the issue of possible waiver, the court found that defendant and his counsel had taken reasonable steps to preserve confidentiality and granted defendant’s motion to strike the email, which had been attached as an exhibit to an opposition to summary judgment.

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DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010)

In this case, the court addressed the question of waiver as to nine privileged emails.  As to six emails inadvertently produced by a third party, waiver was averted by the terms of a Stipulated Protective Order entered by the court which precluded waiver by inadvertent production.  As to three other emails, the question of waiver turned on plaintiff’s use of his work computer to send the messages.  Relying on evidence that plaintiff’s employer did not believe such use would waive privilege, the court ruled privilege was not waived.

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Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)

Defendant sought to discover plaintiff’s “current and historical Facebook and MySpace pages and accounts”, including deleted information, on the belief that information posted there was inconsistent with her injury claims.  The court granted the motion, despite plaintiff’s privacy concerns, upon finding the information was material and relevant and that plaintiff had no reasonable expectation of privacy, and because the defendant’s need for access outweighed plaintiff’s privacy concerns.

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Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

In this case, both parties moved for spoliation sanctions alleging destruction of emails.  Defendants also sought to compel production of certain emails and plaintiff’s personal computer and storage devices to ensure she was not withholding evidence.  Both motions for sanctions were denied.  Despite denying the motion to compel production of plaintiff’s computer, the court ordered plaintiff to create a mirror image at defendants’ expense — to be left in safekeeping with her attorney — to ensure the preservation of evidence while defendants further investigated her preservation efforts.

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Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)

For willful, bad faith discovery violations, including failure to implement a litigation hold, attempted deletion of ESI, actual deletion of ESI, and misrepresentations regarding the completeness of discovery, the Court recommended default judgment and a permanent injunction as to plaintiff’s copyright claim and ordered monetary sanctions and that defendants’ acts of spoliation be treated as contempt such that an individual defendant, the President of Creative Pipe, be jailed for not more than two years “unless and until” he pays the attorney’s fees and costs awarded.

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Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010)

In this day in age, it is easy to believe that everybody is familiar with email.  That is not always the case.  In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs’ attorney-client privilege was waived as a result of their son’s receipt of privileged emails where it was established that the son’s assistance was necessary to ensure plaintiffs’ timely receipt of the emails, in light of plaintiffs’ lack of email proficiency.

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Pitney Bowes Gov. Solutions, Inc. v. United States, 2010 WL 3278402 (Fed. Cl. Aug. 19, 2010)

In this post-award bid protest, plaintiff sought spoliation sanctions for defendant’s destruction of relevant documents.  Although most of the documents were deleted and/or destroyed by their original custodians upon the order of the contracting officer, the documents were available for production from backup tapes.  The restored documents, however, all reflected the same author in their metadata, causing plaintiff to doubt their veracity and persist in its request for spoliation sanctions.

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Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was “at a minimum” negligent and indicated that an adverse inference would be crafted after all the evidence had been received.  For “prolonged delay” in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000.

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Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

In this employment discrimination case, the court denied the pro se plaintiff’s motion for spoliation sanctions, despite finding defendants were at least negligent in their preservation efforts, where plaintiff failed to present extrinsic evidence “tending to show that the destroyed emails would have been favorable to his case.” 

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EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010)

The EEOC, on behalf of two claimants, filed claims alleging sexual harassment.  In the course of discovery, defendant sought production of claimants’ internet social networking site (“SNS”) profiles and other communications from claimants’ Facebook and MySpace.com accounts.  Plaintiff resisted.  Following its discussion of the “General Principles Applicable to Discovery of SNS” and the proper scope of discovery in the present case, the court determined that certain content was relevant and ordered plaintiff to produce the relevant information, subject to the guidelines identified by the court.

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