Case Summaries – Page 262 – Electronic Discovery Law

Thompson v. State, 210 P.3d 1233 (Alaska Ct. App. 2009)

Dec 01 2009

Key Insight: Appellate court held audio tapes were properly authenticated and admitted into evidence and that trial court did not abuse its discretion upon finding that ?the State presented ample evidence to support the conclusion that the two recordings accurately depicted the two conversations they purported to reproduce? including testimony from victim?s mother who actually taped the conversations and the State Trooper who provided the equipment and instructions; court declined to adopt nine part traditional test for authentication and noted the ?modern approach,? i.e., ?[whether[ the proponent [of the evidence has] presented sufficient evidence to support a rational finding [that] the tape recording is authentic?

Nature of Case: Second degree sexual abuse of a minor

Electronic Data Involved: Audio tapes

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Dec 01 2009

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

HSH Nordbank AG N.Y. Branch v. Swerdlow, 2009 WL 2223476 (S.D.N.Y. July 24, 2009)

Dec 01 2009

Key Insight: Court ordered inadvertently produced documents returned where documents were protected by attorney-client privilege and the common interest doctrine, where plaintiff was sufficiently careful in its privilege review, inadvertently produced only nine documents out of 250,000, and promptly sought their return, and where the parties protective order provided that inadvertent production would not result in waiver

Nature of Case: Breach of contract

Electronic Data Involved: Privilege communications

Bellinger v. Astrue, 2009 WL 2496476 (E.D.N.Y. Aug. 14, 2009)

Dec 01 2009

Key Insight: Court declined to compel production of detailed information regarding defendant?s electronically stored information and efforts to search the same where such production would be ?extremely burdensome? and unlikely to be of significant value, especially in light of defendants prior production of information regarding the relevant information systems and searches and because plaintiff had not established prejudice as a result of alleged deficiencies in defendants production, among other reasons; footnote addressing format of production reasoned hard copy production of ESI was acceptable because hard copy was a reasonably useable format, because production in electronic format would be burdensome, and because plaintiff?s counsel was already familiar with the hard copy production such that production in electronic form would be ?redundant and wasteful?

Nature of Case: Employment discrimination

Electronic Data Involved: Information related to information systems and searches for relevant ESI

Fuller v. Interview, Inc., 2009 WL 3241542 (S.D.N.Y. Sept. 30, 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege where production was inadvertent, where reasonable steps were taken to protect privileged materials, where the volume of inadvertently produced material was very small (portions of a few pages out of 34,000 pages produced), and where defendants acted quickly to assert the privilege after discovering the inadvertent production

Nature of Case: Termination in violation of Family Medical Leave Act

Electronic Data Involved: Portions of privileged emails

Dassault Systemes, S.A. v. Childress, 2009 WL 3602084 (E.D. Mich. Oct. 27, 2009)

Dec 01 2009

Key Insight: Court granted leave to serve subpoena to procure computers and documents seized from the defendant despite finding that the items were procured through the coercive powers of the grand jury (and thus subject to stricter showing to compel their discovery) where plaintiff showed the evidence would be otherwise available through civil discovery and where the court could not conceive how such access would reveal anything about the nature, direction or scope of the grand jury?s inquiry

Nature of Case: Copyright and trademark infringement

Electronic Data Involved: Computers

People v. Vallejo, 2009 WL 3925232 (Cal. Ct. App. Nov. 19, 2009)(Unpublished)

Dec 01 2009

Key Insight: Court found no abuse of discretion for admitting table summarizing defendant?s sales activities for the relevant time period where the corporate investigator of defendant?s suspected theft prior to his prosecution testified that the report was generated by a particular software in the ordinary course of business and where there was the ?logical inference? based on certain facts that the report was prepared ?at or near? the time of the events reported therein as is required by California Evid. Code section 1271 to authenticate a document as a business record

Nature of Case: Grand theft from employer

Electronic Data Involved: Report of defendant’s sales activities

Bensel v. Allied Pilots Assoc., 263 F.R.D. 150(D.N.J. 2009)

Dec 01 2009

Key Insight: Despite acknowledging that ?defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data,? the court found that plaintiffs failed to identify any specific document that was lost or destroyed, failed to establish destruction of documents in bad faith and failed to specify any prejudice arising from the alleged bad behavior and denied plaintiff?s motion for spoliation sanctions; in so holding, court noted plaintiff?s reliance on speculation and ?vague statements? which did not ?rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation.?

Nature of Case: Allegations of breach of duty of fair representation

Electronic Data Involved: ESI

Whatman v. Davin, 2009 WL 4808807 (D.S.C. Dec. 9, 2009)

Dec 01 2009

Key Insight: Where defendant?s employee admitted to using her personal computer to work from home and plaintiff thereafter sought to compel defendant?s production of that computer, court found that ?plaintiff?s informal request for a forensic copy of [employee?s] personal home computer does not impose upon the defendants the burden of producing property outside its possession and control? and therefore denied plaintiff?s motion to compel

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Employee’s personal computer

Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Co., 2009 WL 464989 (N.D. Tex. Feb. 23, 2009)

Dec 01 2009

Key Insight: Where defendant sought protection against disclosure of documents related to the billing dispute with its former attorneys because such production could waive privileges in another, pending case, court ordered production pursuant to prescribed provisions, including a provision that no waiver would result by the compelled disclosures pursuant to Fed. R. Evid. 502

Nature of Case: Billing dispute between counsel and former client

Electronic Data Involved: Information related to billing dispute

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