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.

Gamby v. First Nat?l Bank of Omaha, 2009 WL 127782 (E.D. Mich. Jan. 20, 2009)

Dec 01 2009

Key Insight: Where defendant repeatedly violated its discovery obligations, including making misrepresentations of unavailability despite later revelations that documents were available from shared electronic source, and in light of explanations ?entirely unworthy of credence,? among other things, court struck answer of defendant and ordered judgment by default to plaintiff on issue of liability

Nature of Case: Claims arising from the Fair Credit Reporting Act

Electronic Data Involved: ESI

Lapin v. Goldman Sachs & Co., 2009 WL 222788 (S.D.N.Y. Jan. 23, 2009)

Dec 01 2009

Key Insight: Where defendants previously produced documents to regulators without any limitations as to subject matter, court ordered parties in present litigation to meet for at least four hours to discuss search terms intended to identify the relevant documents for production to plaintiff from amongst those already produced; where plaintiff sought documents beyond those previously produced to regulators, court found the request likely more burdensome than beneficial and ordered plaintiff to articulate need for additional documents and to consider compromises to avoid burden and expense

Nature of Case: Securities violations

Electronic Data Involved: ESI

Boyce & Isley, PLLC v. Cooper, 673 S.E.2d 694 (N.C. App. 2009)

Dec 01 2009

Key Insight: Where protective order allowed for inspection and identification of documents to be copied and where defendant?s attorney was allowed to inspect documents for such identification and also took notes, including typing portions of those documents into her laptop, appellate court found notes were protected as opinion work product because they would reveal which documents, among thousands, were considered significant to defendants and reversed order of trial court compelling their production

Nature of Case: Defamation

Electronic Data Involved: Attorney’s notes on laptop

Asarco, Inc. v. U.S. Envtl. Prot. Agency, 2009 WL 1138830 (D.D.C. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued it made a sufficient showing of bad faith to justify discovery regarding the adequacy of defendant?s search and the exemptions claimed but where plaintiff presented no genuine issue of material fact to which discovery would be devoted and where the remedy for a deficient search is to remand to the agency for a more adequate search, court denied plaintiffs? motion to take discovery; where defendant used only one search term — ?recontamination? ? court ordered ?one last search? using the terms: ?recontaminate,? ?recontaminat,? ?recontamination,? and ?contaminate again?

Nature of Case: FOIA

Electronic Data Involved: ESI

Loius Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., 2009 WL 1312898 (N.D. Cal. May 12, 2009)

Dec 01 2009

Key Insight: Where plaintiff?s initial investigation into publicly posted Internet content evidencing offers for counterfeit products revealed that several previously identified addresses belonged to the same individual and where plaintiff identified additional potentially infringing sites, court granted plaintiff?s motion to modify the court ordered inspection protocol to allow investigation beyond the 67 websites previously identified; court rejected defendants? argument that modification should be denied as burdensome where plaintiff was to bear the cost of the searching and rejected defendants privacy concerns in light of expert?s articulated methodology for pinpointing only potentially relevant material

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Website Content

Omnicare, Inc. v. Mariner Health Mgmt. Co., 2009 WL 1515609 (Del. Ch. May 29, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where plaintiff sought to compel defendants to restore backup tapes containing emails that were automatically deleted but where defendants objected to restoration and production due to cost, court denied plaintiff?s motion and ordered defendants to produce relevant data from their ?active stores? first in order to assess the likelihood of finding relevant, discoverable data on the backup tapes; if active stores showed a likelihood of recovery of discoverable data on the backup tapes, court stated that processing at defendants? expense would be appropriate

Nature of Case: Dispute arising between pharamaceutcal suppliers and nursing home operator related to contractual obligations and billing

Electronic Data Involved: Backup tapes

Catagory:Case Summaries