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.

Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel upon finding that defendant ?did not timely comply with its discovery obligations? including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney?s fees

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: ESI

Estrada v. Dehli Cmty. Ctr., 2009 WL 3359194 (Cal. App. Ct. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court imposed terminating sanctions against plaintiff and monetary sanctions upon counsel for egregious discovery abuses; client?s abuses included refusal to produce relevant information despite agreement and/or a court order to do so and willful installation of a new operating system on a computer subject to preservation and production, among other things; counsel?s abuses included delay in responding to discovery, misrepresentations to the court and opposing counsel, and refusal to produce relevant information despite a court order

Nature of Case: Wrongful termination/ sexual harassment

Electronic Data Involved: ESI

Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 WL 3756898 (D.N.H. Nov. 9, 2009)

Dec 01 2009

Key Insight: Finding that emails transmitted for purpose of responding to discovery were not privileged, court affirmed magistrate?s order denying motion to quash subpoena seeking production of such emails; addressing defendant?s argument that separate email entries on privilege log should have been considered as a string, court relied on Muro v. Target Corp. noting that while ?Muro says that a court cannot force a party to individually list emails that appear in a privilege log as a string; it does not say that a court must string together emails that are listed separately.?

Nature of Case: trademark infringement

Electronic Data Involved: Emails

U.S. v. Cameron, 2009 WL 4544928 (D. Me. Nov. 30, 2009)

Dec 01 2009

Key Insight: Where following an order to produce relevant laptops for defendant?s expert to examine the government represented its lack of custody of such laptops, save one, and that the laptop in its possession did not contain relevant evidence but did contain materials statutorily prohibited from dissemination, court amended order to explicitly relieve the Government of the obligation to produce materials not in its possession or to produce the laptop containing materials restricted from dissemination by statute; court?s opinion explicitly affirmed defendant?s right to question the Government regarding its failure to preserve and to bring any newly discovered evidence to the court?s attention

Nature of Case: Criminal

Electronic Data Involved: Hard drive

Vagenos v. LDG Fin. Servs., LLC, No. 09-cv-02672 (E.D.N.Y. Dec. 31, 2009)

Dec 01 2009

Key Insight: Where plaintiff destroyed the original recording of an automated telephone message that was the subject of the litigation but sought to offer an alleged duplicate recording, court denied defendant?s motion to preclude such an offering where defendant failed to establish the requisite ?bad faith? necessary under Fed. R. Evid. 1004(1) and because the evidence was vital to plaintiff?s case but ordered an adverse inference instruction allowing the jury to infer that ?the destroyed portion of the message contained information harmful to plaintiff?s case? where plaintiff and plaintiff?s counsel (who did not instruct plaintiff of his duty to preserve and was responsible for creating the duplicate recording) failed to uphold their duty to preserve evidence in anticipation of litigation

Nature of Case: Violation of Fair Debt Collection Practices Act

Electronic Data Involved: Recording of automated telephone message

U-Haul Int?l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040 (9th Cir. 2009)

Dec 01 2009

Key Insight: Court found ?computer-generated? exhibits summarizing loss adjustment expense payments ?fit squarely within the business records exception to hearsay? and were properly authenticated by the testimony of an employee who, although not responsible for actually inputting each piece of data that was summarized in the exhibit, was sufficiently familiar with the record system that his ?description of the process used to create the summaries was sufficient to authenticate the evidence?

Nature of Case: Breach of insurance contract

Electronic Data Involved: Computer-generated summaries

Catagory:Case Summaries