Case Summaries – Page 272 – Electronic Discovery Law

Dawe v. Corrections, USA, 2009 WL 3233883 (E.D. Colo. Oct. 1, 2009)

Dec 01 2009

Key Insight: Citing a ?pervasive? level of ?distrust that permeates this litigation? and plaintiff?s ?adamant refusal to permit even a limited inspection? and citing defendants? representations that additional, relevant information remained on the laptop and that the laptop had been ?forensically cleaned,? court granted defendants? motion to compel inspection of plaintiff?s laptop but ordered defendants to bear the cost – if inspection revealed relevant information was withheld, court invited a motion to shift some or all of the costs to plaintiff(s)

Electronic Data Involved: ESI, laptop

United States v. Cinergy, Corp., 2009 WL 6327414 (S.D. Ind. Nov. 10, 2009)

Dec 01 2009

Key Insight: Inadvertent production of privileged material by third party pursuant to subpoena waived defendants? privilege protection where third party?s disclosure was found to be tantamount to defendant?s disclosure because of the nature of their relationship and where defense counsel failed to take any steps to prevent the production of privileged materials despite being asked specifically if privilege issues were implicated in the production (to which he answered ?no?) and despite the low volume of materials produced; court noted that although there was no legal obligation for defendants to conduct a post-production review, ?had [they] done so, they might well have noticed the email at issue before Plaintiffs did, and the result in this case might have been different.?

Electronic Data Involved: Privileged email

Pom Wonderful LLC v. The Coca-Cola Co., No. CV 08-6237 SJO (FMOx), 2009 WL 10655335 (C.D. Cal. Nov. 30, 2009)

Dec 01 2009

Key Insight: Defendant produced 138 emails whose attachments that were not linked, claiming it produced the documents in ?the normal course of business? and had no obligation to re-link the attachments. The court disagreed, stating that ?plaintiff must have the ability to identify which attachments belong to which emails.? Defendant argued it could not automatically re-link the emails with the attachments, but would have to ?employ a tedious manual process.? The court indicated Defendant ?cannot seek to preclude plaintiff from pursuing discovery based on a record-keeping system that is plainly inadequate.? The court found Defendant did not meet the burden to prove it would be unduly burdensome to re-link the message units and granted the motion (Defendant must provide data/software to allow Plaintiff to re-link or must re-produce the 138 emails with their attachments). The court denied the motion to compel Defendant to produce purchase and valuation documents, finding Defendant met its burden to show the requested information is not relevant to this case.

Electronic Data Involved: Email

D.G ex rel. Stricklin v. Henry, 2009 WL 455266 (N.D. Okla. Feb. 20, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion seeking production of emails from particular custodians and rejected defendant?s argument that cost of production should be shifted where defendants did not challenge the relevance of the emails at issue, where plaintiff?s ?reasonably limited their request to avoid undue burden? to defendants, and where the court?s consideration of the Zubulake factors resulted in a determination that cost shifting was not appropriate

Nature of Case: Class action against DSHS

Electronic Data Involved: Emails

Moore v. Am. Family Mut. Ins. Co., 2009 WL 886848 (D. Ariz. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where defendants recreated documents sought by plaintiff using raw data after destroying copies of the original document pursuant to its document retention policy and where plaintiff offered no evidence to ?reasonably question? such a practice or that any data was destroyed in anticipation of litigation, court found insufficient evidence to support an adverse inference

Nature of Case: Breach of contract claims arising from denial of insurance claim

Electronic Data Involved: Original declaration sheet

Surplus Source Group, LLC v. Mid-Am. Engine, 2009 WL 961207 (E.D. Tex. Apr. 8, 2009)

Dec 01 2009

Key Insight: Where the need for a third search of defendants? electronically stored information resulted from plaintiffs? delay in providing search terms, court ordered defendants to undertake third search, using terms provided by plaintiffs, but ordered plaintiffs to bear the cost of the third search, up to the amount equal to the second search, reasoning that such an order would essentially result in plaintiffs bearing the cost of the second search which was insufficient because of their delay

Nature of Case: Claims arising from defendants? alleged failure to split profits from sales of industrial equipment

Electronic Data Involved: ESI

Mauna Kea Beach Hotel Corp. v. Affiliated FM Ins. Co., 2009 WL 1227850 (D. Haw. May 1, 2009)

Dec 01 2009

Key Insight: In insurance dispute, where defendant appealed the order of the Magistrate arguing that discovery requests, even as limited by Magistrate?s order, were unreasonable and burdensome in light of need to review thousands of claims without the capability to search electronically, District court ruled that discovery of related claims should be limited to claims from Hawaii and ordered production of such claims from 2003 to present

Nature of Case: Claims of bad faith, breach of contract, and unjust enrichment arising from insurance dispute

Electronic Data Involved: Electronically stored claims information

Continental Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 1098461 (S.D. Fla. Apr. 22, 2009)

Dec 01 2009

Key Insight: Where defendant accessed relevant files after being placed on notice of litigation and thus spoliated metadata, but where defendant?s testimony regarding her lack of knowledge that accessing the files would destroy metadata was credible and where plaintiffs failed to meet their burden of showing bad faith, plaintiffs? motion for adverse inference was denied

Nature of Case: Violations of Computer Fraud and Abuse Act, breach of restrictive covenant contracts, tortious interference with customer relationships, among others

Electronic Data Involved: Metadata

State v. Underdahl, 767 N.W.2d 677 (Minn. 2009)

Dec 01 2009

Key Insight: Abuse of discretion for district court to order discovery of source code of Intoxilyzer 500EN absent presentation of evidence on how source code may relate to guilt or innocence; no abuse of discretion for finding that source code was in ?possession or control? of state where state?s response to relevant request for proposal when replacing the previous breath test instrument asserted ownership of copyrighted material (i.e., portions of the source code, as discussed by the court)

Nature of Case: Driving under the influence

Electronic Data Involved: Source code

Richmond v. Coastal Bend Coll. Dist., 2009 WL 1940034 (S.D. Tex. July 2, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion for protective order preventing the production of emails in sealed court file where plaintiffs failed to establish an exception to the Public Information Act requiring their disclosure, where plaintiffs failed to establish defendants? waiver of privilege, and where plaintiffs failed to establish the applicability of the crime fraud exception; court granted plaintiffs? motion to compel certain information, including personal emails, and ordered defendants to submit affidavits indicating their lack of personal accounts, if appropriate, and for defendants to produce emails ?of a personal nature to the court under seal? for a determination of relevance

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Catagory:Case Summaries