Case Summaries – Page 271 – Electronic Discovery Law

Gamby v. First Nat?l Bank of Omaha, 2009 WL 127782 (E.D. Mich. Jan. 20, 2009)

Dec 01 2009

Key Insight: Where defendant repeatedly violated its discovery obligations, including making misrepresentations of unavailability despite later revelations that documents were available from shared electronic source, and in light of explanations ?entirely unworthy of credence,? among other things, court struck answer of defendant and ordered judgment by default to plaintiff on issue of liability

Nature of Case: Claims arising from the Fair Credit Reporting Act

Electronic Data Involved: ESI

Lapin v. Goldman Sachs & Co., 2009 WL 222788 (S.D.N.Y. Jan. 23, 2009)

Dec 01 2009

Key Insight: Where defendants previously produced documents to regulators without any limitations as to subject matter, court ordered parties in present litigation to meet for at least four hours to discuss search terms intended to identify the relevant documents for production to plaintiff from amongst those already produced; where plaintiff sought documents beyond those previously produced to regulators, court found the request likely more burdensome than beneficial and ordered plaintiff to articulate need for additional documents and to consider compromises to avoid burden and expense

Nature of Case: Securities violations

Electronic Data Involved: ESI

Boyce & Isley, PLLC v. Cooper, 673 S.E.2d 694 (N.C. App. 2009)

Dec 01 2009

Key Insight: Where protective order allowed for inspection and identification of documents to be copied and where defendant?s attorney was allowed to inspect documents for such identification and also took notes, including typing portions of those documents into her laptop, appellate court found notes were protected as opinion work product because they would reveal which documents, among thousands, were considered significant to defendants and reversed order of trial court compelling their production

Nature of Case: Defamation

Electronic Data Involved: Attorney’s notes on laptop

Asarco, Inc. v. U.S. Envtl. Prot. Agency, 2009 WL 1138830 (D.D.C. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued it made a sufficient showing of bad faith to justify discovery regarding the adequacy of defendant?s search and the exemptions claimed but where plaintiff presented no genuine issue of material fact to which discovery would be devoted and where the remedy for a deficient search is to remand to the agency for a more adequate search, court denied plaintiffs? motion to take discovery; where defendant used only one search term — ?recontamination? ? court ordered ?one last search? using the terms: ?recontaminate,? ?recontaminat,? ?recontamination,? and ?contaminate again?

Nature of Case: FOIA

Electronic Data Involved: ESI

Loius Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., 2009 WL 1312898 (N.D. Cal. May 12, 2009)

Dec 01 2009

Key Insight: Where plaintiff?s initial investigation into publicly posted Internet content evidencing offers for counterfeit products revealed that several previously identified addresses belonged to the same individual and where plaintiff identified additional potentially infringing sites, court granted plaintiff?s motion to modify the court ordered inspection protocol to allow investigation beyond the 67 websites previously identified; court rejected defendants? argument that modification should be denied as burdensome where plaintiff was to bear the cost of the searching and rejected defendants privacy concerns in light of expert?s articulated methodology for pinpointing only potentially relevant material

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Website Content

Omnicare, Inc. v. Mariner Health Mgmt. Co., 2009 WL 1515609 (Del. Ch. May 29, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where plaintiff sought to compel defendants to restore backup tapes containing emails that were automatically deleted but where defendants objected to restoration and production due to cost, court denied plaintiff?s motion and ordered defendants to produce relevant data from their ?active stores? first in order to assess the likelihood of finding relevant, discoverable data on the backup tapes; if active stores showed a likelihood of recovery of discoverable data on the backup tapes, court stated that processing at defendants? expense would be appropriate

Nature of Case: Dispute arising between pharamaceutcal suppliers and nursing home operator related to contractual obligations and billing

Electronic Data Involved: Backup tapes

A.N.S.W.E.R. Coalition v. Salazar, 2009 WL 1703232 (D.D.C. June 18, 2009)

Dec 01 2009

Key Insight: ?Unconvinced? that defendants had not unduly limited the scope of their search for responsive documents, court ordered additional searching but limited the scope of plaintiff?s proposed terms and parameters and ordered the parties to meet and confer regarding: an agreeable search methodology consistent with the court?s opinion, the identification of potentially responsive databases and custodians likely to maintain relevant information, and ?a list of search directives? likely to result in the identification of relevant documents

Nature of Case: Constitutional claims

Electronic Data Involved: ESI

Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982449 (S.D. Fla. Apr. 9, 2009)

Dec 01 2009

Key Insight: Court declined to find plaintiffs had waived privilege as to three emails where the emails were inadvertently produced (amongst a supplemental production of 10,000 documents), where plaintiffs? counsel took reasonable steps to prevent their production by conducting a pre-production privilege review and where two of the emails had been marked as privileged, and where plaintiff took reasonable steps to rectify the error by requesting the return of each email shortly after discovering its production; court found waiver as to one email where the details of the email where revealed at hearing and in a declaration and thus, the privilege was voluntarily waived

Nature of Case: Claims arising from breach of confidentiality agreement

Electronic Data Involved: Emails

In re Intel Microprocessor Antitrust Litig., 2009 WL 2030967 (D. Del. July 7, 2009)

Dec 01 2009

Key Insight: Court adopted Special Master?s Report and Recommendation requiring plaintiffs to respond to questions regarding the scope of their efforts with regard to the restoration of backup tapes upon finding that such information was not protected by the attorney-client privilege

Nature of Case: Antitrust litigation

Electronic Data Involved: Backup tapes, ESI

Bonn v. City of Omaha, 2009 WL 1740783 (D. Neb. June 18, 2009)

Dec 01 2009

Key Insight: Court found the requested electronic discovery ?not reasonably accessible? due to burden and cost and because the expense of the discovery outweighed the likely benefit and denied plaintiff?s motion to compel production of relevant emails where defendant stated they had already retrieved and produced all responsive emails from key individuals containing search terms proposed by plaintiff?s counsel

Nature of Case: Wrongful discharge

Electronic Data Involved: ESI

Catagory:Case Summaries