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.

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

Thompson v. Commonwealth, 2009 WL 1025166 (Ky. App. Ct. Apr. 17, 2009)

Dec 01 2009

Key Insight: Appellate court upheld trial court?s admission of digital recordings into evidence where tapes were authenticated by officer?s testimony that that the device used for recording had been used more than 100 times and that that the recording was downloaded directly to a computer and then transferred to CDs specifically identified at trial, and where informant testified that the recordings ?fairly and accurately depicted the events of the [recorded transaction]?

Nature of Case: Criminal drug trafficking

Electronic Data Involved: Digital recordings of alleged drug sale to informant

Dirickson v. State, 2009 WL 195744 (Ark. App. Jan. 28, 2009)

Dec 01 2009

Key Insight: Trial court?s ruling allowing admission of transcripts of online chats into evidence was affirmed where such evidence was considered ??original? in the context of computers? under the rules of evidence and thus satisfied the Best Evidence Rule; court reasoned that even if the transcripts had not satisfied Best Evidence Rule, transcripts were admissible as copies because the originals had been destroyed, but not in bad faith, and the transcripts (?duplicates?) were authenticated by the officer?s testimony regarding how the transcripts were created and the reliability of their content

Nature of Case: Internet stalking

Electronic Data Involved: Transcripts of online chat

Feig v. The Apple Org.., 2009 WL 1515506 (S.D. Fla. May 29, 2009)

Dec 01 2009

Key Insight: Where defendant alleged that identifying responsive employee emails was too burdensome in light of inability to search emails electronically, court found defendant had not satisfactorily established inability to search and ordered production of requested emails; court acknowledged that if defendant established the inability to search electronically, identifying requested emails would be overly burdensome and, in the event searching was truly impossible, ordered defendants to move for a protective order supported by an affidavit of a forensic expert providing an explanation

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

State v. Melendez, 291 Conn. 693, 970 A.2d 64 (2009)

Dec 01 2009

Key Insight: Having previously established a standard for the authentication of computer generated evidence in State v. Swinton, 268 Conn. 781,847 A.2d 921 (2004), court highlighted distinction between ?technologies that may be characterized as merely presenting evidence and those that are more accurately described as creating evidence? and held that unmodified surveillance footage did not constitute computer generated evidence for purposes of Swinton; testimony of camera operator that the footage presented to the court was the same footage he observed when the images were originally captured was sufficient to authenticate the unmodified video; court?s admission of modified video footage was harmless error

Nature of Case: Sale of narcotics

Electronic Data Involved: Surveillance footage

Catagory:Case Summaries