Case Summaries – Page 259 – Electronic Discovery Law

Beyer v. Medico Ins. Group, 2009 WL 3817211 (D.S.D. Nov. 13, 2009)

Dec 01 2009

Key Insight: Where defendant claimed responding to discovery would require searching 200,000 claim files but where court determined defendant could sort claims files using specific codes, court found defendant?s assertions ?disingenuous? and ordered production of the requested files; where defendant claimed search remained unduly burdensome because of need to convert certain files to allow text searching, court reasoned that ?the fact that answering [request for relevant discovery] will be burdensome and expensive is not in itself a reason for the court?s refusing to order discovery which is otherwise appropriate? and ordered the production of all documents describing defendant?s electronic means of searching and all software used during the relevant timeframe (as requested by plaintiff) if defendant persisted in claiming an inability to search electronically as a basis for refusing to answer discovery

Nature of Case: Bad faith denial of insurance claims

Electronic Data Involved: Electronic claim files

Amobi v. D.C. Dep?t of Corrs., 262 F.R.D. 45 (D.D.C. 2009)

Dec 01 2009

Key Insight: In this opinion authored by Magistrate Judge Facciola, the court conducted an analysis of waiver pursuant to FRE 502 and found that the attorney work-product privilege was waived by the inadvertent production of an attorney-prepared memorandum where defendants claimed ?several reviews of the documents?were undertaken? but offered no indication of the methodology used to review documents for privilege ?let alone any explanation of why these efforts were?reasonable in the context of the demands made upon the defendants? and thus failed to meet their burden of proving that the privilege was not waived

Nature of Case: Claims arising from DOC officer’s removal from duty following an altercation with an inmate

Electronic Data Involved: Attorney-prepared memorandum

Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009)

Dec 01 2009

Key Insight: Where, when producing voluminous documents in response to Fed. R. Civ. P. 33 they must be accompanied by indices ?to guide the interrogating party to the responsive documents? and where ?rules applicable to producing documents under Rule 33(d) are generally applicable to Rule 34?, court ordered defendant to provide more detailed responses to plaintiffs requests for discovery upon defendants? production of 7000 pages and indication that ?all 7000 pages of documents were responsive to each request?; court reasoned, ?Defendant’s claims that the documents are sufficiently organized because they are bates-stamped and scanned into a CD-ROM are unavailing. Defendant did not refer to specific bates numbers when it responded to the discovery requests at issue, and the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant’s duty to sufficiently identify the location of the relevant documents.?

Nature of Case: Breach of faith and breach of fiduciary duty

Electronic Data Involved: ESI

People v. Buckner, 228 P.3d 245 (Colo. App. 2009)

Dec 01 2009

Key Insight: Court held admission of defendant?s cell phone was not error and did not constitute impermissible hearsay where the prosecution sought to show that an undercover officer?s number showed up on defendant?s phone, where the phone was authenticated by the officer?s testimony, and where the telephone was not a ?person? or ?declarant? making ?a communicative ?statement? within the meaning of the relevant hearsay rule; court rejected argument that admission of phone was error because it contained other phone numbers, texts, etc. where defendant failed to show that he was prejudiced and failed to identify any particular message, etc. that the jury would have obtained from the phone

Nature of Case: Criminal

Electronic Data Involved: Cellular phone

Fells v. Virginia Dept. of Transp., 605 F. Supp. 2d 740 (E.D. Va. Mar. 25, 2009)

Dec 01 2009

Key Insight: Identifying a difference between costs expended for converting a paper document into an electronic one and creating electronically searchable documents, the court denied defendant?s request for recovery of costs related to ?electronic records initial processing, Metadata extraction, [and] file conversion?

Nature of Case: Employment litigation

Grand River Enters. Six Nations, Ltd. v. King, 2009 WL 330213 (S.D.N.Y. Feb. 9, 2009)

Dec 01 2009

Key Insight: District Court affirmed denial of plaintiff?s motion for an order compelling the production of ?econometric data? previously produced to the FTC, and the computer programs used to calculate it, because the data was of limited relevance, because the risk created by disclosure of the sensitive information outweighed the limited benefit to plaintiffs, and because the calculations for which the data was necessary had already been performed in another case and thus were available from an alternative source

Electronic Data Involved: Econometric data and computer programs

Dahl v. Bain Capital Partners, LLC 2009 WL 1748526 (D. Mass. June 22, 2009)

Dec 01 2009

Key Insight: Briefly but comprehensively addressing a number of electronic discovery issues, court declined to shift discovery costs to the requesting party, declined to order defendants to bear the cost of changing the format of their responsive documents for production (unless such conversion was necessary to render the documents ?usable?), declined to order the production of all metadata and instead limited production to 12 fields of metadata proposed by plaintiffs, and ordered the production of spreadsheets and privilege logs in native format

Electronic Data Involved: ESI, metadata

S.E.C. v. Leslie, 2009 WL 4724242 (N.D. Cal. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where defendant produced responsive documents after the close of discovery and explained that he believed the documents had been previously produced by his prior employer based on his misunderstanding that all documents saved to his personal computer were also saved on the employer?s network (and thus collected from that source), the court reasoned that ?a trial on the merits of the case outweighs and prejudice to the plaintiff?, that the plaintiff had had more than a month to complete the review of the newly produced documents, and that defendant had fulfilled his obligation to supplement discovery and denied defendant?s motion to exclude plaintiff?s use of the documents; court allowed defendant to depose plaintiff for an additional two hours

Electronic Data Involved: Late produced ESI

Viacom Int?l, Inc. v. YouTube Inc., 2009 WL 102808 (N.D. Cal. Jan. 14, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of third party?s materials related to plaintiffs despite objections where documents sought were relevant and where the alleged burden was insufficient in light of probable reimbursement to third party by plaintiffs, plaintiffs? performance of the necessary privilege review, and third party?s prior success in reducing the volume of responsive documents; where defendants sought third party material unrelated to plaintiffs, court ordered defendants and third party to meet and confer regarding scope of production and ordered defendants to bear the cost; court also ordered meet and confer regarding format of production, including specific consideration of granting defendants access to Kroll database where documents were stored

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

AHF Cmty. Dev., LLC v. City of Dallas, 2009 WL 348190 (N.D. Tex. Feb. 12, 2009)

Dec 01 2009

Key Insight: Where city inadvertently produced privileged documents due to its conversion to new software but then allowed its witness to testify regarding those documents at deposition without objection, court held privilege had been waived and declined to compel the documents? return

Nature of Case: Violations of Fair Housing Act

Electronic Data Involved: Email

Catagory:Case Summaries