Case Summaries – Page 275 – Electronic Discovery Law

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Hinojos v. Park City Mun. Corp., 2009 WL 392450 (D. Utah Feb. 17, 2009)

Dec 01 2009

Key Insight: Court granted motion for forensic examination of defendant?s employee?s hard drive for purpose of verifying creation date of relevant evidence, but, finding direct access to employee?s computer ?too risky,? court ordered mutually acceptable independent expert to image computer?s storage space and provide image to plaintiff?s forensic expert for examination of the relevant data files; Plaintiff was to bear costs

Nature of Case: Employment case

Electronic Data Involved: Hard drive

Orbit One Commc?ns, Inc. v. Numerex Corp., 2009 WL 799975 (E.D. La. Mar. 20, 2009)

Dec 01 2009

Key Insight: Court ordered plaintiffs to bear cost of non-party?s production in response to plaintiffs? subpoena where Fed. R. Civ. P. 45 provides for protection of a non-party from undue burden or expense and where the court found the non-party?s expenditure of $6,000 to respond ?significant?; court?s analysis also noted the parties? failure to fix production costs in advance, as discussed in the Advisory Committee Notes, and plaintiffs? awareness of the possibility that the non-party would request reimbursement

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Hape v. State, 903 N.E. 2d 977 (Ind. Ct. App. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where a jury discovered and considered text messages not authenticated separately from a properly admitted cell phone, court found that text messages must be separately authenticated before admission into evidence but declined to find grounds for reversal of defendant?s conviction where the error was harmless in the context of the other evidence against him

Nature of Case: Felony possession of methamphetamines

Electronic Data Involved: Text messages

State v. Denton, 768 N.W.2d 250 (Wis. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court erred in admitting computer generated animation allegedly depicting the events that lead to trial where State failed to provide notice of its intent to use the animation, where the animation was created by a non-expert witness who lacked personal knowledge of the events, and where the State failed to lay a foundation for the evidence based on the incorrect assumption that the animation was merely demonstrative; appellate court determined animation was more prejudicial than probative where it did not merely illustrate a witness?s testimony but rather was ?a collage of information? from each of the State?s witnesses presented as fact

Nature of Case: Attempted kidnapping, false imprisonment, attempted armed robbery

Electronic Data Involved: Computer generated animation

White v. Fuji Photo Film, USA, Inc., 209 WL 1528546 (S.D.N.Y. June 1, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s motion for adverse inference arising from former employer?s destruction of her work computer where plaintiff failed to indicate that the computer contained relevant information and thus employer did not have notice sufficient to raise a duty to preserve and where plaintiff failed to establish that the lost information was relevant to the action

Nature of Case: Wrongful termination

Electronic Data Involved: Plaintiff’s former work computer

Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009)

Dec 01 2009

Key Insight: Where evidence indicated defendant wiped her computer?s hard drive days before producing it for inspection but where evidence also indicated that the wiping occurred prior to receipt of the subpoena seeking the computer?s production, appellate court acknowledged a reasonable basis to suspect intentional spoliation but found that there was not sufficiently compelling evidence to require such a finding and thus, the district court did not abuse its discretion in declining to impose spoliation sanctions

Nature of Case: Invasion of privacy

Electronic Data Involved: Computer hard drive

Tumbling v. Merced Irrigation Dist., 2009 WL 2136112 (E.D. Cal. July 14, 2009)

Dec 01 2009

Key Insight: Citing Fed. R. Civ. P. 26(b)(2)(c)(i) and (ii), court denied defendant?s motion to compel production of plaintiff?s hard drive where defendant admitted that it had not yet exhausted less intrusive or burdensome means of discovering the information sought

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive

State v. Bowser, 2009 WL 2308068 (Wis. Ct. App. July 30, 2009)

Dec 01 2009

Key Insight: Trial court did not abuse discretion by denying defendant?s motion for a copy of the hard drive containing incriminating child pornography and granting State?s motion for a protective order requiring defendant?s forensic expert to conduct examination of the hard drive pursuant to Department of Justice protocol which required the examination be undertaken at government offices under strict guidelines intended to prevent further dissemination of the images

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

Paradise v. Al Copeland Invs., Inc., 22 So.3d 1018 (La. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court abused its discretion in ordering an adverse presumption in favor of plainitff for defendant?s loss of relevant computer evidence by discarding a hard drive after it crashed where defendant offered a reasonable explanation for the loss; court?s reasoning also relied upon evidence that the communications sought by plaintiff were available from an alternative source

Nature of Case: Class action for violation of Telephone Consumer Protection Act

Electronic Data Involved: Hard drive

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