Case Summaries – Page 264 – Electronic Discovery Law

Feig v. The Apple Org.., 2009 WL 1515506 (S.D. Fla. May 29, 2009)

Dec 01 2009

Key Insight: Where defendant alleged that identifying responsive employee emails was too burdensome in light of inability to search emails electronically, court found defendant had not satisfactorily established inability to search and ordered production of requested emails; court acknowledged that if defendant established the inability to search electronically, identifying requested emails would be overly burdensome and, in the event searching was truly impossible, ordered defendants to move for a protective order supported by an affidavit of a forensic expert providing an explanation

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

State v. Melendez, 291 Conn. 693, 970 A.2d 64 (2009)

Dec 01 2009

Key Insight: Having previously established a standard for the authentication of computer generated evidence in State v. Swinton, 268 Conn. 781,847 A.2d 921 (2004), court highlighted distinction between ?technologies that may be characterized as merely presenting evidence and those that are more accurately described as creating evidence? and held that unmodified surveillance footage did not constitute computer generated evidence for purposes of Swinton; testimony of camera operator that the footage presented to the court was the same footage he observed when the images were originally captured was sufficient to authenticate the unmodified video; court?s admission of modified video footage was harmless error

Nature of Case: Sale of narcotics

Electronic Data Involved: Surveillance footage

EEOC v. Aaron Bros., Inc., 620 F.Supp.2d 1102 (C.D. Cal. 2009)

Dec 01 2009

Key Insight: Court granted motion to modify subpoena and rejected defendants arguments it was overly broad and unduly burdensome where the court found the evidence sought to be relevant and material and where defendants failed to present evidence of the actual costs of production, the size of their operations and there capacity to handle those costs, or that such costs would be unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, harcopy

Chirdo v. Mineral Techs., Inc., 2009 WL 2195135 (E.D. Pa. July 23, 2009)

Dec 01 2009

Key Insight: Court denied motion for spoliation sanctions for alleged destruction of emails where the emails were destroyed pursuant to defendant?s document retention policy five months prior to defendant?s receipt of plaintiff?s EEOC charge at a time when there was no duty to preserve and where plaintiff only vaguely alleged the contents of the documents and their relevance; human resources representative?s comment that plaintiff?s review was ?evidence in support of any future litigation? did not trigger duty to preserve because ?that is the primary purpose for the retention of human resource records? and because she did not know that the time of the statement that plaintiff would be terminated, let alone file a lawsuit

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Infor Global Solutions (MI), Inc. v. St. Paul Fire & Marine Ins. Co., 2009 WL 2390174 (N.D. Cal. Aug. 3, 2009)

Dec 01 2009

Key Insight: Where out of ?an apparent concern about the court imposed deadline,? plaintiff produced electronic documents without review because of technical difficulties opening certain files and emails and where plaintiff informed no one of the difficulties, sought no extension from the court for production, and did not qualify the production with any ?clawback? notice, court found that plaintiff had waived privilege and granted defendant?s motion to compel

Nature of Case: Insurance

Electronic Data Involved: Privileged ESI

Dilts v. Maxim Crane Works, L.P., 2009 WL 3161362 (E.D. Ky. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where defendants failed to record data stored on crane?s computer following death of two construction workers, but where plaintiffs offered no evidence to support their allegations that the data was manually destroyed or that the failure to photograph the display was unreasonable and where defendants presented evidence that data could not be downloaded from the crane?s computer and plaintiff failed to request the information downloaded in the first place, court declined plaintiffs motion for spoliation sanctions

Nature of Case: Negligence resulting in death

Electronic Data Involved: ESI stored on crane’s internal computer

Major Tours, Inc. v. Colorel, 2009 WL 3446761 (D.N.J. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court granted protective order precluding obligation to search archived emails or emails stored on backup tapes where such emails were ?not reasonably accessible? in light of the estimated $1.5 million retrieval costs and because backup tapes are generally considered inaccessible, and where plaintiffs failed to establish good cause for such production; where defendant offered a ?scaled back alternative,? court ordered parties to split the cost of retrieving emails from a particular subset of backup tapes and provided plaintiffs the opportunity to compel searches of an additional subset of tapes – at their expense – including the cost of review

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Backup tapes, email

Benedict College v. Nat?l Credit Systs., 2009 WL 3839473 (D.S.C. Nov. 16, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s claims that discovery was produced as maintained in the usual course of business where documents were printed, copied, bates labeled and then converted to .pdf format and defendant?s objections that plaintiff?s requests were overly broad and burdensome, court granted plaintiff?s motion to compel and ordered defendant to produce all responsive documents, organized and labeled according to each request, and to produce to plaintiff and the court a ?faithful electronic copy? of its relevant database with metadata intact to allow for inspection if the need arose; doubting the sufficiency of defendant?s production of email, court ordered company?s president to order a diligent search for responsive documents and to certify by affidavit (using language provided by the court) that such a search was conducted and to provide an explanation for any missing or unfound documents

Nature of Case: Beach of contract

Electronic Data Involved: ESI, emails

People v. Clevenstine, 891 N.Y.S.2d 511 (N.Y. App. Div. 2009)

Dec 01 2009

Key Insight: Stating that ?authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it,? and that ?the foundation necessary to establish these elements may differ according to the evidence,? court found computer disk containing instant messages was properly authenticated and admitted into evidence where ?both victims testified they had engaged in instant messaging with defendant,? where an investigator testified that he had retrieved the messages from defendant?s computer, where MySpace ?explained the messages?had been exchanged by users of the accounts created by the defendant and the victims,? and where his wife recalled seeing such conversations on defendant?s computer

Nature of Case: Criminal

Electronic Data Involved: Disk containing instant messages

Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365 (D. Va. 2009)

Dec 01 2009

Key Insight: Where plaintiff failed to issue a litigation hold, court ordered plaintiff to issue a litigation hold as to those personnel likely to possess discoverable evidence and to file a sworn declaration describing whether any files had been lost, the methods use to determine the existence of such a loss, the extend of the loss, and the nature of the litigation hold placed in response to the present order; court found plaintiff?s production of documents ?problematic? where it failed to organize the production according to Rule 34 and ordered plaintiff to ?amend? its production to comply; acknowledging that ?the identities of those in control of certain documents is information that may be as relevant as the documents? [substance]?, court ordered search and production of President?s documents despite claims that those documents were produced from other custodians

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Catagory:Case Summaries