Case Summaries – Page 256 – Electronic Discovery Law

N.H. Ball Bearings, Inc. v. Jackson, 969 A.2d 351 (N.H. 2009)

Dec 01 2009

Key Insight: Where evidence indicated high probability of spoliation by defendant including deleting data and running disk defragmenter and disk cleanup functions, among other things, but where evidence also indicated potential spoliation of ESI by plaintiff because of its failure to preserve the last accessed date of certain files, trial court gave adverse inference instruction to jury allowing finding of spoliation by either side and appellate court affirmed; appellate court also affirmed trial court?s denial of plaintiff?s request to access up to 250 hard drives for imaging upon finding the request ?too broad and burdensome? especially in light of trial court?s grant of access to plaintiff, upon narrowing its request, to back up tapes and specifically relevant hard drives

Nature of Case: Breach of confidentiality agreement

Electronic Data Involved: ESI

Kotler v. Woods, 2009 WL 1011701 (E.D.N.Y. Apr. 15, 2009)

Dec 01 2009

Key Insight: Where petitioner challenged his conviction on grounds that the state destroyed material evidence in the form of cassette tapes containing the dictation of a detective?s report and therefore violated his due process rights, court concluded petitioner failed to demonstrate a Brady violation where petitioner failed to show that the evidence would have been favorable to him and would have altered the outcome of his trial and where the trial court gave an adverse inference instruction related to the loss of the tapes that also made a change in the outcome unlikely

Nature of Case: Petition for writ of habeus corpus

Electronic Data Involved: Cassette tapes

Triton Constr. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115 (Del. Ch. May, 18, 2009)

Dec 01 2009

Key Insight: Finding that defendant should have expected litigation upon his resignation to accept employment with a competitor, court found that defendant ?intentionally, or at a minimum recklessly destroyed or failed to preserve evidence? by installing wiping software to target specific files for overwriting, by deleting thousands of files and folders as well as emails, and by failing to produce his home computer or portable thumb drive without adequate explanation; court allowed adverse inference that missing information would have supported plaintiff?s position ?on any issue to which that information was relevant?

Nature of Case: Breach of fiduciary duty by working simultaneously for direct competitor

Electronic Data Involved: Email, ESI

Sony BMG Music Entertainment v. Tenebaum, , 2009 WL 1651338 (D.R.I. June 10, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion to compel compliance with third party subpoena to allow access to the hard drive of the parents of defendant accused of copyright infringement in a music downloading case where parents were not parties to the action and where the computer was purchased after defendant moved out and thus plaintiffs failed to establish likelihood of the discovery of relevant information sufficient to warrant intrusion into parents? privacy

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive belonging to third party

State v. Hall, 2009 WL 1751473 (Minn. Ct. App. June 23, 2009) (Unpublished)

Dec 01 2009

Key Insight: Appellate court affirmed (on alternative grounds) trial court?s denial of defendant?s motion to compel production of the Intoxilyzer 500EN source code where defendant failed to present any evidence of the source code?s relevance beyond his ?bare assertion that he must have access to the source code in order to effectively challenge his test result? and thus ?failed to meet the standard necessary for compelled disclosure?

Nature of Case: Driving while impaired

Electronic Data Involved: Source code

State v. Bernini, 2009 WL 922471 (Ariz. Ct. App. Apr. 7, 2009)

Dec 01 2009

Key Insight: Court of Appeals found ?[t]he respondent judge erred as a matter of law and abused her discretion in ordering the state to produce source code material for the Intoxilyzer 8000 that it did not possess and had been unable to obtain, without any evidence the state had “better access” than defendants to what CMI maintains are trade secrets? and vacated trial court?s order directing the state to obtain the requested code

Nature of Case: Consolidated appeal of defendants charged with DUI

Electronic Data Involved: Source code of Intoxilyzer 8000

Am. Serv. Mktg., Corp. v. Bushnell, 2009 WL 1870887 (E.D. La. June 25, 2009)

Dec 01 2009

Key Insight: Where plaintiff alleged defendant violated the preliminary injunction by deleting files he was directed to preserve and return to plaintiff, including using wiping software to delete files hours before producing his computer for inspection, court denied plaintiff?s motion for contempt finding that ?without some other indication that [defendant] deliberately deleted files referenced in the preliminary injunction,? plaintiff failed to present the ?clear and convincing evidence? required to warrant a finding of contempt

Nature of Case: Federal trademark and state law breach of contract claims

Electronic Data Involved: ESI

Ojeda-Sanchez v. Bland Farms LLC, 2009 WL 2365976 (S.D. Ga. July 31, 2009)

Dec 01 2009

Key Insight: In unpaid wages case, court ordered production of data from database in native format ?so that the metadata [could] be examined,? where plaintiffs demonstrated a particular need for the information, i.e., the need to determine how workers? pay was calculated; court excused defendants from the need to produce the information in Excel format to the extent the files requested were too large to export

Nature of Case: Unpaid wages

Electronic Data Involved: ESI from database

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

Catagory:Case Summaries