Case Summaries – Page 259 – Electronic Discovery Law

Union Ins. Co. v. Delta Casket Co. Inc., 06-2090, 2009 WL 10665127 (W.D. Tenn., Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted Plaintiff?s motion that Defendants bear the costs Plaintiff incurred in producing archived emails, implicated by Defendant?s 30(b)(6) notice. The notice came after a year and a half of discovery and one month before the discovery deadline. Plaintiff was required to use a third party to conduct the search, put the retrieved emails on discs, send them to a copy service to convert to TIFF files and print them so Plaintiff?s counsel could review for relevancy and privilege. Plaintiff spent approximately $35,000 on this process. The Court held that Plaintiff?s Motion was timely and Defendants had notice before the emails were produced that Plaintiff was seeking costs, Plaintiff met its burden of showing the cost and burden incurred were undue and conversion of the discs to TIFF format was necessary in order for Plaintiff?s counsel to review the emails prior to production.

Nature of Case: Insurance indemnification

Electronic Data Involved: Archived email

Hope for Families & Cmty. Servs., Inc. v. Warren, 2009 WL 1066525 (M.D. Ala. Apr. 21, 2009)

Dec 01 2009

Key Insight: Court found emails withheld by non-party independent contractor were protected by attorney-client privilege (and work product in some cases) where independent contractor acted as representative of plaintiff for purpose of securing bingo license from the county and was authorized to communicate with counsel on plaintiff?s behalf, among other things, and where the subject communications satisfied the five-prong test borrowed from the ?corporate employee context? requiring that the communication was made for the purpose of securing legal advice for the corporation, at the direction of the corporation, that the subject of the communication was within the scope of the independent contractor?s duties, and that the communication was not disseminated beyond persons needing to know its contents; court found common interest doctrine applicable where non-party and plaintiff?s interests were identical pursuant to the terms of their consulting contract and the nature of their relationship

In re Atl. Marine Prop. Holding Co., Inc., 2009 WL 1211399 (S.D. Ala. Apr. 29, 2009)

Dec 01 2009

Key Insight: Where court ordered company to obtain waivers from employees allowing their personal email providers to release certain communications for production but where the email providers indicated their inability to provide those communications, court declined to order adverse inference where there was no evidence to indicate company acted in bad faith or purposefully lost or destroyed the emails

Electronic Data Involved: Email from employees’ personal accounts

Wells Fargo Bank, N.A. v. LaSalle Bank Nat?l Ass?n, 2009 WL 2243854 (S.D. Ohio July 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff filed a motion to compel (or for sanctions) following its discovery that defendant failed to search a number of backup tapes and failed to maintain all tapes which may have contained responsive ESI, court denied the motion upon finding that burden of restoration of the tapes was ?disproportionate to the likely utility of doing so? and because LaSalle had a practice of printing and filing important emails; court also noted the parties? failure to adequately confer regarding the discovery of ESI

Electronic Data Involved: Backup tapes

State v. Ross, 2009 WL 118958 (Ohio Ct. App. Jan. 20, 2009)

Dec 01 2009

Key Insight: Where transcript of online chat was erased from law enforcement hard drive following ?computer problems? but where there was no evidence of bad faith, appellate court affirmed denial of defendant?s motion for production of the hard drive and reasoned that State could authenticate the printed transcripts by offering testimony from personal knowledge that the document was what it was claimed to be pursuant to ER 901(B)(1) or through the presentation of ?evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result? pursuant to ER 901(B)(9)

Nature of Case: Attemtped unlawful sexual conduct with a minor

Electronic Data Involved: Hard drive, online chat transcripts

Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 425821 (E.D. Wis. Feb. 20, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s motion to compel production of all electronically stored information containing plaintiff?s name where defendants had already produced all email containing plaintiff?s name in the body of the message, where defendants had already expended $40,000 to respond to plaintiff?s requests, and where the court determined the extensive discovery was not warranted in light of its finding that ?the facts needed to support Kay?s claims?are already part of the record or necessarily within Kay?s own knowledge? and the unlikelihood that plaintiff would prevail at summary judgment

Nature of Case: Claims under Wisconsin?s Fair Dealership Law, breach of contract, and unjust enrichment, among others

Electronic Data Involved: ESI containing mention of plaintiff

Orbit One Commc?ns, Inc. v. Numerex Corp., 2009 WL 799975 (E.D. La. Mar. 20, 2009)

Dec 01 2009

Key Insight: Court ordered plaintiffs to bear cost of non-party?s production in response to plaintiffs? subpoena where Fed. R. Civ. P. 45 provides for protection of a non-party from undue burden or expense and where the court found the non-party?s expenditure of $6,000 to respond ?significant?; court?s analysis also noted the parties? failure to fix production costs in advance, as discussed in the Advisory Committee Notes, and plaintiffs? awareness of the possibility that the non-party would request reimbursement

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Hape v. State, 903 N.E. 2d 977 (Ind. Ct. App. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where a jury discovered and considered text messages not authenticated separately from a properly admitted cell phone, court found that text messages must be separately authenticated before admission into evidence but declined to find grounds for reversal of defendant?s conviction where the error was harmless in the context of the other evidence against him

Nature of Case: Felony possession of methamphetamines

Electronic Data Involved: Text messages

State v. Denton, 768 N.W.2d 250 (Wis. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court erred in admitting computer generated animation allegedly depicting the events that lead to trial where State failed to provide notice of its intent to use the animation, where the animation was created by a non-expert witness who lacked personal knowledge of the events, and where the State failed to lay a foundation for the evidence based on the incorrect assumption that the animation was merely demonstrative; appellate court determined animation was more prejudicial than probative where it did not merely illustrate a witness?s testimony but rather was ?a collage of information? from each of the State?s witnesses presented as fact

Nature of Case: Attempted kidnapping, false imprisonment, attempted armed robbery

Electronic Data Involved: Computer generated animation

White v. Fuji Photo Film, USA, Inc., 209 WL 1528546 (S.D.N.Y. June 1, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s motion for adverse inference arising from former employer?s destruction of her work computer where plaintiff failed to indicate that the computer contained relevant information and thus employer did not have notice sufficient to raise a duty to preserve and where plaintiff failed to establish that the lost information was relevant to the action

Nature of Case: Wrongful termination

Electronic Data Involved: Plaintiff’s former work computer

Catagory:Case Summaries