Case Summaries – Page 255 – Electronic Discovery Law

Supreme Court of Washington Holds Trial Court Did Not Abuse Discretion in Imposing $8,000,000 Default Judgment Pursuant to CR 37 for Defendant’s Willful Discovery Violations

Dec 11 2009

Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. 2009)

Plaintiff sustained injuries in an automobile accident that he alleged were caused in part by a defective seat design which allowed the seat to collapse. The case went to trial and plaintiff was awarded $8,000,000. The verdict was reversed on appeal for reasons related to plaintiff’s expert’s testimony and a new trial on the issue of liability was ordered.

Trial Court Violated Attorney-Client Privilege by Ordering In Camera Review

Dec 03 2009

Costco Wholesale Corp. v. Superior Court, S163335 (Cal. Nov. 30, 2009)

In 2000, Costco hired outside counsel to provide legal advice regarding the applicability of certain wage and overtime laws to its warehouse managers. In furtherance of providing such advice, counsel spoke with two managers Costco had made available to her. Thereafter, she provided Costco with a 22-page opinion letter addressing the question at issue. Several years later, plaintiffs in a class action against Costco sought to compel production of the relevant opinion letter arguing that the letter contained unprivileged information and that Costco had placed the contents in issue thereby waiving the privilege.

To resolve the question, the court ordered the letter be reviewed by a discovery referee who subsequently recommended production of the letter with heavy redactions. The referee reasoned that the factual information therein was not privileged and that while interviewing the two managers, the attorney had acted not as an attorney but as a fact finder. The trial court adopted the recommendation and ordered the letter produced. On appeal (and without ruling on the merits of the trial court’s order or its decision to refer the letter to a discovery referee for review), the court affirmed the order reasoning that Costco had failed to establish that the production would cause irreparable harm. The issue was appealed to the Supreme Court of California.

Finding Back-up Tapes “Not Reasonably Accessible” Court Declines to Compel Restoration of All but One Tape; No Sanctions for Deletion of Email Absent Evidence of Duty to Preserve or Showing of Bad Faith

Dec 03 2009

Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009)

In this breach of contract litigation, plaintiff filed a motion to compel defendant Watson Bowman Acme Corporation (“WABO”) to “remedy its spoliation of documents” by restoring and searching back-up tapes that potentially contained copies of emails that were deleted. Plaintiff also sought sanctions for the alleged spoliation. The court denied plaintiff’s motion to compel the restoration of all back-up tapes, following its determination that the burden and cost of such restoration rendered the documents not reasonably accessible and upon finding that plaintiff failed to establish good cause for such a search. However, as to a one tape determined to potentially contain the relevant deleted emails, the court granted plaintiff’s motion and ordered the tape be restored and searched. Regarding sanctions, the court denied plaintiff’s motion absent a clear indication of a duty to preserve at the time of the deletion and absent any evidence of bad faith.

Communications with Attorney Using Company Computer and Email Account Not Protected by Attorney-Client Privilege

Dec 01 2009

Alamar Ranch, LLC v. City of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009)

In this case arising from a land use and permitting dispute, the court ruled that emails sent by a non-party to her attorney using her work computer and work-assigned email address were not protected by the attorney-client privilege. In so holding, the court relied in large part upon the existence of company policy which put the employee on notice that her emails were subject to monitoring and were not confidential. Emails sent by the attorney to the employee’s work account were likewise unprotected where the attorney was on notice of the employee’s use of company email and should have recognized the risk that such emails were unprotected. As for emails sent to the attorney by other clients and copied to the employee, the court reasoned that such emails retained their privileged status where the senders (non-employees of the relevant company) were not on notice of the potential exposure of their emails to outside scrutiny.

Statera v. Henrickson, 2009 WL 2169235 (D. Colo. July 17, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s ex parte motion for a temporary restraining order enjoining defendants from ?deleting or destroying, erasing or otherwise making unavailable for further proceedings? any of plaintiff?s relevant business information obtained by defendants while employed by plaintiff and enjoining the deletion or alteration of email messages and other content in relevant email accounts, among other things

Nature of Case: Claims arising from former employees’ formation of competing business and suspected use of plaintiff’s confidential information

Electronic Data Involved: ESI, emails

Lewis v. Ryan, 2009 WL 3486702 (S.D. Cal. Oct. 23, 2009)

Dec 01 2009

Key Insight: Court adopted recommendation of the magistrate judge to impose an adverse inference and exclude certain evidence as sanction for spoliation where defendants indicated they could not locate information, including ESI, which, according to records retention requirements, should have been in their possession at the time plaintiff propounded his request and thus should have been preserved and produced; court found ?clear and convincing evidence that defendants were ?at fault? for recklessly and negligently allowing the documents to be destroyed

Nature of Case: Civil rights complaint arising from service of pork to Muslim inmate

Electronic Data Involved: Hard copy, ESI

Schuler v. Invensys Bldg. Sys., Inc., 2009 WL 425821 (E.D. Wis. Feb. 20, 2009)

Dec 01 2009

Key Insight: Finding emails or portions of emails withheld were subject to protection by the attorney-client privilege or work product doctrine, court denied plaintiff?s motion to compel their production; court?s reasoning included discussion of the propriety of withholding email headers and held that redaction of email headers was proper where such headers provided information including: ?the topic of discussion between certain people, the identities of those people, and the time at which the discussion took place.?

Electronic Data Involved: Emails

Flying J. Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1834998 (D. Utah June 25, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of transaction data and rejected plaintiffs? arguments that defendants should be required to make a reciprocal production and that absent such reciprocity plaintiffs? production would be unduly burdensome; court found defendant?s request for use of additional search terms to identify responsive emails was not unduly burdensome where defendant was added to litigation late and where plaintiffs therefore assumed the risk of increased costs in light of expanded claims

Electronic Data Involved: Transaction data, emails

Callan v. Christian Audigier, Inc., 263 F.R.D. 564(C.D. Cal. 2009)

Dec 01 2009

Key Insight: Where defendants sought to compel plaintiff?s compliance with a clawback provision intended to control the return of inadvertently produced documents but failed to establish the nature of the privilege claimed or the precautions taken to prevent disclosure, court ruled that defendants had failed to establish that the production of any document was ?inadvertent? and denied defendants? motion to compel

Electronic Data Involved: ESI

Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL 641297 (D. Colo. Mar. 10, 2009)

Dec 01 2009

Key Insight: Court ordered specific protocol for search of mirror images of defendant?s hard drive allowing defendant to first remove privileged and irrelevant material and create a detailed privilege log and then to produce the redacted drive to plaintiff; upon receipt of redacted drive, plaintiff was ordered to confer with defendant to establish search terms and to use those terms to identify potentially relevant information on the drive; where plaintiffs accessed information later claimed to be privileged, court would resolve dispute and privilege would not be waived

Nature of Case: Violation of Computer Fraud Abuse Act, Colorado Consumer Protection Act, misappropriation of trade secrets, breach of contract, interference with contractual obligations

Electronic Data Involved: ESI, hard drive

Catagory:Case Summaries