Case Summaries – Page 259 – Electronic Discovery Law

Convertino v. U.S. Dep?t of Justice, 674 F. Supp. 2d 97(D.D.C. 2009)

Dec 01 2009

Key Insight: Emails between employee and counsel using work computer were protected as privileged where employer did not ban personal use of the company email and where employee was unaware of employer?s regular access to his emails and thus had a reasonable expectation of privacy; privilege was not waived, despite employer?s access to the emails, where employee had ?no intention of allowing?his employer, to read the emails? and disclosure was thus inadvertent and where he took reasonable steps to prevent disclosure by deleting the emails as they came into his account and by filing a motion to intervene to assert the privilege upon learning of his employer?s possession of the emails and their possible disclosure in litigation

Nature of Case: Violations of Privacy Act

Electronic Data Involved: Privileged emails

In re Krause, 2009 WL 5064348 (D. Kan. Dec. 16, 2009)

Dec 01 2009

Key Insight: On appeal, court upheld sanctions for intentional spoliation and other misconduct, including seizure of debtor?s passport and partial summary judgment, where such sanctions were within the discretion of the court and warranted by debtor?s behavior

Nature of Case: Government brought adversary proceeding against Chapter 7 debtor to except his tax debt from discharge and declare various entities his alter ego

Electronic Data Involved: Hard drives, email

Leader Tech., Inc. v. Facebook, Inc., 2009 WL 3021168 (D. Del. Sept. 4, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion for a stay of the Magistrate Judge?s order to produce source code pending review of that order by the District Court where the Magistrate Judge was satisfied as to the relevance of the source code and the ?stringent protection? ordered surrounding defendant?s production; court subjected review of the source code to strict circumstances, including that plaintiff only be permitted to view the code at a location of defendant?s choosing on a non-networked, stand alone, password-protected computer with limited assistance from experts and counsel, among other conditions

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Lawson v. Sun Microsystems, Inc., 2009 WL 499014 (S.D. Ind. Feb. 26, 2009)

Dec 01 2009

Key Insight: Where plaintiff denied wrongdoing resulting from its efforts to access password-protected files containing attorney-client material produced to plaintiff in discovery and relied in part on counsel?s approval of those actions, court ordered emails between plaintiff and counsel produced based on plaintiff?s reliance on those discussions and the ?need to unearth what actually transpired?; court indicated belief that intrusion into the attorney-client privilege was minimized by court?s en camera review of the emails before rendering its decision

Nature of Case: Action for unpaid commission

Rodriquez-Monguio v. Ohio State Univ., 2009 WL 1575277 (S.D. Ohio June 3, 2009)

Dec 01 2009

Key Insight: Where defendant inadvertently produced one privileged email among thousands of pages and did not actually discover such production until months later, despite plaintiff?s reference to the email in a single spaced 5 page letter, and where upon discovery of the inadvertent production defendant immediately sought the email?s return, court rejected plaintiff?s argument that defendant had waived privilege by failing to seek the email?s return within ten days, subject to the parties? clawback agreement, and ordered the email returned

Electronic Data Involved: Privileged email

Gregorio v. Yellow Transp., Inc., 2009 WL 3756493 (N.D. Ill. Nov. 5, 2009)

Dec 01 2009

Key Insight: Court found no attorney-client privilege protection preventing production of employee’s email write up of an accident where Illinois law makes clear that ?employees who supply only the factual bases upon which the decisionmakers predicate their opinions? are not within the protected ?control group? pursuant to the relevant legal test and the communication was therefore not privileged; court also found no protection in the work product doctrine where the write up was generated in the usual course of business and was not of a ?legal nature? and ?primarily concerned with legal assistance?

Electronic Data Involved: Employee’s email description of accident

Barton Group, Inc. v. NCR Corp., 2009 WL 6509348 (S.D.N.Y. July 22, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s request to compel defendant to categorize its production and identify which documents were responsive to which requests where plaintiff and defendant previously agreed that defendant would produce all documents from certain custodians without prior review and where plaintiff therefore could not simultaneously benefit from avoiding the risk that defendant would unilaterally filter out responsive documents while at the same time seeking to have defendant ?provide the kind of classification that plaintiff would have gotten had it made a different choice?

Electronic Data Involved: ESI

Ellington Credit Fund, Ltd. v. Select Portfolio Servs. Inc., 2009 WL 274483 (S.D.N.Y. Feb. 3, 2009)

Dec 01 2009

Key Insight: Despite plaintiffs? claim that they had ?already been prejudiced? by the ?confessed destruction? of ESI in its native format through defendant?s ?systematic purges? of its computer systems, court denied motion to lift stay of discovery and impose preservation order where defendant provided affidavit stating a litigation hold was imposed and that the ?regular document retention policy? had not been applied to information relating the loans at issue in the case, and where plaintiffs presented no evidence to the contrary

Nature of Case: Breach of Contract

Electronic Data Involved: ESI

MSC Software Corp. v. Altair Eng?g, Inc., 2009 WL 426556 (E.D. Mich. Feb. 19, 2009)

Dec 01 2009

Key Insight: Responding to several of plaintiff?s concerns regarding defendants? production of electronically stored information, special master recommended denial of plaintiff?s request for production of a new, updated database where plaintiff already received updates regarding changes made to the database, where accommodation of the request would require considerable effort by defendants, including stopping all user activity in the database and creating five copies of the information for dissemination to all parties, and where the requested production would make analysis of some key issues more difficult ? recommendation was adopted by the court

Nature of Case: Theft of trade secrets

Electronic Data Involved: Database

In re Application of Michael Wilson & Partners, Ltd., 2009 WL 119374 (D. Colo. Apr. 30, 2009)

Dec 01 2009

Key Insight: Reasoning that electronic storage devices ?perform the same function as did a file cabinet in the pre-electronic era? and that they must therefore be searched ?just as they would have had to do had all the information been printed out and stored in hard copy format? and also reasoning that ?[t]he fact that duplicate documents may have been stored and maintained in more than one place is irrelevant to the duty to search all locations,? court ordered respondents to subpoenas to conduct additional searches of all electronic storage devices in their possession at the time of their response; where the sharing of production costs had been ordered, court required requesting party to post $1 million pre-judgment cost bond in light of the ?circumstances of the case? including respondents? expenditure of more than $2.5 million and fears that the requesting party would dispute their share and attempt to avoid payment

Nature of Case: Litigation between an international law firm and a new firm comprised of its former employees related to the new firm?s alleged interference in business relationships and breach of certain duties

Electronic Data Involved: ESI

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