Case Summaries – Page 256 – Electronic Discovery Law

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

Johnson v. U.S. Bank Nat?l Assoc., 2009 WL 4682668 (S.D. Ohio Dec. 3, 2009)

Dec 01 2009

Key Insight: Court granted motion to serve preservation subpoena on third-party prior to the Rule 26(f) conference where plaintiff showed good cause for such a subpoena, including the potential relevance of the documents and the danger of spoliation where the company had been ?dormant? since 2006, and where the subpoena was narrowly tailored to prevent spoliation and did not impose an immediate obligation to produce documents

Nature of Case: Class action

Electronic Data Involved: ESI

Sony BMG Music Entm?t v. Doe, 2009 WL 5252606 (E.D.N.C. Oct. 21, 2009)

Dec 01 2009

Key Insight: Considering the five factors established in Sony Music Ent. v. Does 1-40, 326 F.Supp.2d 556(S.D.N.Y. 2004) to determine whether an anonymous defendant?s identity is shielded from discovery by the first amendment (in circumstances such as those presented here), court denied a motion to quash the subpoena seeking anonymous defendant?s identity where plaintiffs made a concrete showing of a prima facie claim, where the subpoena was narrowly drawn and sought limited information, where there was no alternate means of identifying the defendant, where the information was necessary to effect service on the defendant and where ?defendant has little expectation of privacy in allegedly distributing music over the internet without permission of the copyright holder?

Nature of Case: Copyright infringement

Electronic Data Involved: Identity of alleged John Doe infringer

Bass v. Miss Porter?s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009)

Dec 01 2009

Key Insight: Upon in camera review of all documents produced to plaintiff by Facebook pursuant to subpoena, and in response to plaintiff?s objection to producing all such documents on the grounds that many were irrelevant and immaterial, court found ?no meaningful distinction? between the pages produced and the pages withheld and stated that ?Facebook usage depicts a snapshot of the user?s relationship and state of mind at the time of the content?s posting? and that ?relevance is more in the eye of the beholder? such that production should not be limited to plaintiff?s determination of what may be ?reasonably calculated to lead to the discovery of admissible evidence? and ordered the production of all documents produced by Facebook to defendants, rather than the smaller subset previously provided

Nature of Case: Claims arising from alleged bullying and harassment of private school student

Electronic Data Involved: Facebook

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 878 (N.D. Ohio 2009)

Dec 01 2009

Key Insight: Where plaintiff settled its claim of intentional spoliation against one defendant no longer in the case but failed to bring that claim against the defendants that remained and where the evidence was undisputed that the defendant who had settled all claims and was no longer a party to the litigation had maintained exclusive custody and control of the at-issue hard drives and plaintiff offered no evidence of the remaining defendants? involvement in destroying the relevant hard drives, the court held that the remaining defendants could not be sanctioned under either Ohio law or Federal law

Nature of Case: Breach of contract, misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: Hard drives

Zhang v. Ing Direct, 2009 WL 234487 (D. Del. Jan. 29, 2009)

Dec 01 2009

Key Insight: Where, in response to request for documents indicating an effort to find work, defendant produced a list of emails and screen shots from his computer, but not the emails themselves, court found defendants response inadequate and ordered production of all relevant documents in his possession

Electronic Data Involved: Emails

Green v. Fluor Corp., 2009 WL 1668376 (M.D. La. June 11, 2009)

Dec 01 2009

Key Insight: Where defendants failed to request production of a photograph taken by cell phone in electronic format and later contested plaintiff?s format of production, court denied defendants? motion to compel production and inspection upon noting defendants? failure to contest the photos authenticity or to show that viewing the original would provide information not already in their possession and upon noting Rule 34?s instruction that a party need not produce the same electronically stored information in more than one form

Electronic Data Involved: Photograph taken with cellular phone

Sanders v. Kohler, 2009 WL 4067265 (E.D. Ark. Nov. 20, 2009)

Dec 01 2009

Key Insight: Where the court interpreted defendant?s response to plaintiff?s second motion to compel to mean that defendant had complied with its preservation obligations and may produce additional materials and explicitly required defendant to immediately notify the court if that interpretation was not accurate ? and where that interpretation was not accurate but was not corrected by defendant – court granted plaintiff?s third motion to compel and ordered defendant to produce all ESI and other responsive documents with an affidavit describing the steps taken to ensure such production and warned defendant that if ?counsel makes this kind of mistake again? the court would impose sanctions

Electronic Data Involved: ESI

Schanfield v. Sojitz Corp. of Am., 2009 WL 577659 (S.D.N.Y. Mar. 6, 2009)

Dec 01 2009

Key Insight: Emails sent to co-workers to recruit them as co-plaintiffs not protected by the work product doctrine where plaintiff merely assumed co-workers would keep his communications secret but where court found that sending emails to employees of a corporation increased the likelihood that the material would reach others within the corporation and thus ruled that plaintiff forfeited the protection by using the work product ?in such a way that they may end up in the hands of [his]adversary;? where plaintiff sent emails to attorney family members and copied his non-lawyer sister or another relative, court ruled emails were protected by work product doctrine because material was prepared in anticipation of litigation and sharing with relatives ?did not significantly increase the likelihood that [defendant] would obtain private information?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Catagory:Case Summaries