Case Summaries – Page 259 – Electronic Discovery Law

Koninklijke Philips Electronics, N.V. v. KXD Tech., Inc., 2009 WL 3059090 (9th Cir. Sept. 24, 2009) (Unpublished)

Dec 01 2009

Key Insight: District court did not abuse discretion in ordering default judgment where court found defendant deliberately destroyed computer servers, and with it certain ESI that had been requested by the plaintiff, where such destruction demonstrated the necessary ?willfulness, bad faith and fault? to support such a sanction, where the prejudice caused by the failure to produce the ESI was ?not excused? by the fact that plaintiff already possessed some of the destroyed documents, and where less severe sanctions were previously awarded and defendant had been warned of the possibility of stricter sanctions in future

Nature of Case: Infringement litigation

Electronic Data Involved: ESI stored on server

Great Am. Ins. Co. v. Liberty Surplus Ins. Co., 2009 WL 3052680 (N.D. Cal. Sept. 18, 2009)

Dec 01 2009

Key Insight: Where a claims specialist for defendant forwarded counsel?s coverage opinion to third party, copied a claims manager for her company in the communication, discussed the opinion with the third party, and made no claim of privilege until the document was utilized in plaintiff?s motion for summary judgment, court found that the production was not inadvertent and found that the voluntary communication of the coverage opinion waived defendant?s claim of attorney-client privilege and work product; court?s opinion specifically rejected defendant?s reliance on Fed. R. Civ. P. 26(b)(5)(B)

Nature of Case: Insurance litigation regarding coverage obligations

Electronic Data Involved: Email forwarding counsel’s coverage opinion

Gray v. State, 2009 WL 3645055 (Tex. App. Nov. 4, 2009) (Unpublished)

Dec 01 2009

Key Insight: Emails were properly authenticated by defendant?s acknowledgment that he sent the emails at issue during a recorded interview with detectives, by the victim?s testimony that she was familiar with defendant?s email address and signature and by defendant?s own offering of emails between himself and the victim which contained identical email addresses to those emails challenged on appeal

Nature of Case: Criminal

Electronic Data Involved: Emails

Laethem Equip. Co. v. Deere & Co., 2009 WL 3064663 (E.D. Mich. Sept. 21, 2009)

Dec 01 2009

Key Insight: Adopting magistrate?s recommendation, district court judge denied defendant?s motion for sanctions based upon plaintiff?s alleged discovery misconduct, including spoliation and delay, where defendant ?failed to establish that its defenses have been materially prejudiced? and where plaintiff ?refuted to [magistrate?s] satisfaction the contention of defense counsel that they engaged in spoliation of material?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Gillet v. MI Farm Bureau, 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where plaintiff deleted an ?extremely significant? number of data files from his personal computer despite notice of his obligation to preserve and was thus sanctioned by dismissal of his case, trial court did not abuse its discretion in concluding plaintiff?s actions were not in good faith, particularly in light of the number of files deleted, and properly considered alternative sanctions before imposing terminating sanctions, despite the trial judge?s failure to ?expressly recite? those alternatives on the record; court?s denial of attorneys? fees/monetary sanctions was no abuse of discretion where the court ?dealt appropriately? with plaintiff?s conduct by dismissing the case and where the refusal to impose additional sanctions was ?not unreasoned or unprincipled?

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Edelen v. Campbell Soup Co., 2009 WL 4798117 (N.D. Ga. Dec. 8, 2009)

Dec 01 2009

Key Insight: Where plaintiff neither objected to nor complied with the magistrate judge?s orders to narrow his discovery request upon the determination that plaintiff?s requests for the entire contents of his laptop and that of numerous other ?key players? was overbroad, the district court found nothing ?clearly erroneous or contrary to law? in the magistrate judge?s subsequent orders that plaintiff?s counsel be barred from taking additional depositions until the discovery requests were narrowed and for plaintiff?s counsel to pay defendants? attorney?s fees incurred for pursuing the narrowing of those requests

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Canton v. Kmart Corp., 2009 WL 2058908 (V.I. July 13, 2009)

Dec 01 2009

Key Insight: Court declined to order adverse inference for destruction/loss of surveillance video where plaintiff failed to establish that such a video existed and that defendant therefore had a duty to preserve it; court ordered adverse inference for defendant?s inability to produce photographs upon finding defendant did not take ?reasonable precautions? to preserve the evidence despite knowing that litigation was reasonably foreseeable

Robert v. Bd. of County Comm?rs of Brown Count, Kan., 2009 WL 1362530 (D. Kan. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants could not produce a requested email because of damage to author?s and recipient?s computers but where defendants undertook significant effort to search for the email, including a search by the county?s Information Technology Director and inquiry to the County?s email provider about the email?s availability, and where defendant offered to make the author?s computer available for inspection at plaintiff?s expense, court declined plaintiff?s request to ?shift the cost of an independent computer expert? to defendants and denied plaintiff?s motion to compel production of the email

Electronic Data Involved: Email

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Hinojos v. Park City Mun. Corp., 2009 WL 392450 (D. Utah Feb. 17, 2009)

Dec 01 2009

Key Insight: Court granted motion for forensic examination of defendant?s employee?s hard drive for purpose of verifying creation date of relevant evidence, but, finding direct access to employee?s computer ?too risky,? court ordered mutually acceptable independent expert to image computer?s storage space and provide image to plaintiff?s forensic expert for examination of the relevant data files; Plaintiff was to bear costs

Nature of Case: Employment case

Electronic Data Involved: Hard drive

Catagory:Case Summaries