Case Summaries – Page 266 – Electronic Discovery Law

Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009)

Dec 01 2009

Key Insight: Court ordered third party, AOL, to show cause why it should not be held in contempt for failing to provide a response to defendant?s motion to compel as ordered by the court and gave leave to defendant to commence discovery on AOL?s ability to retrieve requested emails, among other topics, following contradictory representations from AOL and plaintiff regarding the same; court also noted plaintiff?s grant of permission to AOL to produce his emails and that defendant?s subpoena had been appropriately limited as to scope and thus ordered AOL to produce all responsive emails to plaintiff for review prior to production to defendant

Nature of Case: Civil rights action

Electronic Data Involved: Email

People v. Roberts, 2009 WL 3380019 (N.Y. App. Div. Oct. 22, 2009)

Dec 01 2009

Key Insight: Where, based on chain of custody testimony, the trial court admitted a videotape discovered by defendant?s roommate and given to the police, but where there was no testimony concerning the making of the videotape or where it was kept or who had access to it during the nearly three year period from the time of its making to its discovery, and where the appellate court acknowledged that ?because films are so easily altered, there is a very real danger that deceptive tapes, inadequately authenticated, could contaminate the trial process,? appellate court found admission of the tape was in error and that the error was not harmless and ordered a new trial

Nature of Case: Sex abuse

Electronic Data Involved: Videotape

Palm Bay Int., Inc. v. Marchesi Di Barolo, S.P.A., 2009 WL 3757054 (E.D.N.Y. Nov. 9, 2009)

Dec 01 2009

Key Insight: Noting a lack of any indication that plaintiff objected to production in electronic format and highlighting the fact that electronic discovery is permitted under the Federal Rules, court ordered production of discovery in electronic format and directed the parties to confer to determine the best method of production; upon defendant’s assertion that plaintiff failed to produce certain relevant communications as evidenced by the production of previously unseen communications by a third party, court declined to impose sanctions absent evidence of bad faith but indicated a willingness to re-open depositions upon defendant?s submission of subjects to be pursued therein

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Carolina Materials, LLC v. Continental Cas. Co., 2009 WL 4611519 (W.D.N.C. Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production

Nature of Case: Insurance contract dispute

Electronic Data Involved: ESI on relevant computers and servers

Convertino v. U.S. Dep?t of Justice, 674 F. Supp. 2d 97(D.D.C. 2009)

Dec 01 2009

Key Insight: Emails between employee and counsel using work computer were protected as privileged where employer did not ban personal use of the company email and where employee was unaware of employer?s regular access to his emails and thus had a reasonable expectation of privacy; privilege was not waived, despite employer?s access to the emails, where employee had ?no intention of allowing?his employer, to read the emails? and disclosure was thus inadvertent and where he took reasonable steps to prevent disclosure by deleting the emails as they came into his account and by filing a motion to intervene to assert the privilege upon learning of his employer?s possession of the emails and their possible disclosure in litigation

Nature of Case: Violations of Privacy Act

Electronic Data Involved: Privileged emails

In re Krause, 2009 WL 5064348 (D. Kan. Dec. 16, 2009)

Dec 01 2009

Key Insight: On appeal, court upheld sanctions for intentional spoliation and other misconduct, including seizure of debtor?s passport and partial summary judgment, where such sanctions were within the discretion of the court and warranted by debtor?s behavior

Nature of Case: Government brought adversary proceeding against Chapter 7 debtor to except his tax debt from discharge and declare various entities his alter ego

Electronic Data Involved: Hard drives, email

Leader Tech., Inc. v. Facebook, Inc., 2009 WL 3021168 (D. Del. Sept. 4, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion for a stay of the Magistrate Judge?s order to produce source code pending review of that order by the District Court where the Magistrate Judge was satisfied as to the relevance of the source code and the ?stringent protection? ordered surrounding defendant?s production; court subjected review of the source code to strict circumstances, including that plaintiff only be permitted to view the code at a location of defendant?s choosing on a non-networked, stand alone, password-protected computer with limited assistance from experts and counsel, among other conditions

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Kilpatrick v. Breg, Inc., 2009 WL 64358 (S.D. Fla. Jan. 9, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion to quash plaintiff?s 30(b)(6) Deposition Notice seeking a representative to answer questions regarding defendant?s document retention policies where the deposition was reasonably calculated to lead to the discovery of relevant information and where plaintiff indicated various reasons why he required the information sought, including defendant?s failure to produce any information regarding a relevant database and defendant?s claims that certain information was no longer accessible, among other things

Nature of Case: Product liability

Andrew Corp. v. Cassinelli, 2009 WL 736669 (N.D. Ill. Mar. 19, 2009)

Dec 01 2009

Key Insight: Where court ordered discovery into extent of defendant?s compliance with Settlement Agreement upon plaintiff?s showing that confidential information remained on defendant?s computer system and where defendant?s court ordered search for additional information included retention of discovery firm to search seven computers, an email server, and a scratch drive using 26 terms based on the content of the previously discovered confidential information, court found the search ?deficient? and that defendant had failed to confirm that all information subject to the Settlement Agreement was deleted and appointed a Special Master, at defendant?s expense, and ordered defendant to pay plaintiff?s attorneys fees for its Motion to Enforce and Supplement

Electronic Data Involved: ESI

United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009)

Dec 01 2009

Key Insight: Where request for production was unduly burdensome in light of the cost of production and necessary labor to comply, despite the requesting party?s attempt to narrow the scope, and where the court found the request overly broad and that it sought information irrelevant to the litigation, court declined to compel production in response to the particular request, but granted in part other portions of the motion to compel

Electronic Data Involved: ESI

Catagory:Case Summaries