Case Summaries – Page 276 – Electronic Discovery Law

Chambers v. U.S. Dept. of Interior, 568 F.3d 998 (2009)

Dec 01 2009

Key Insight: Court reversed and remanded grant of summary judgment on the issue of the adequacy of the government?s search in response to plaintiff?s FOIA request where a material fact existed as to whether the DOI intentionally destroyed the requested material before undertaking its search which would prevent a finding that the search was adequate

Nature of Case: Freedom of Information Act / FOIA

Electronic Data Involved: Performance appraisal

Sentis v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009)

Dec 01 2009

Key Insight: Where, when imposing discovery sanctions, trial court improperly relied on unreliable evidence of misconduct by plaintiff, including accusations of bribery proffered by defendant following receipt of an anonymous phone tip, where the other findings in support of the sanction were ?close questions,? and where there were accusations of judicial bias and the appearance of judicial partiality, circuit court of appeals reversed the judgment of the district court dismissing plaintiff?s claims and remanded the matter for further proceeding before a different judge

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

Covad Commc?ns Co. v. Revonet, Inc., 2009 WL 5377698 (D.D.C. Aug. 25, 2009)

Dec 01 2009

Key Insight: Where plaintiff represented that defendant had not fulfilled production obligations pursuant to the court?s order, court ordered defendant to respond to questions as to the completeness of its production and other related topics and affirmed its prior order requiring the re-production of 35,000 pages of emails previously produced in hard copy, despite the alleged burden of doing so; court also ordered defendant to respond to questions regarding the production of ESI, including spreadsheets, previously produced in hard copy and noted, ?Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.?

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: ESI

Reeves v. Case W. Univ., 2009 WL 3242049 (N.D. Ohio Sept. 30, 2009)

Dec 01 2009

Key Insight: Where it remained ?entirely unclear? that defendant performed a ?full and thorough search? for responsive ESI, court ordered defendant to perform a ?comprehensive examination of all electronic storage? and to provide certification of the search to plaintiff; as sanction for ?failing to even search for certain evidence,? court prohibited defendant from re-filing its motion for summary judgment as to two of plaintiff?s claims

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

SEC v. Strauss, 2009 WL 3459204 (S.D.N.Y. Oct. 28, 2009)

Dec 01 2009

Key Insight: Court found SEC had control of Delloitte & Touche database for purposes of Rule 34 analysis where SEC had both the practical ability and legal right to obtain the working papers contained therein but declined to compel SEC to grant access to defendant where he could obtain independent access to the database himself (by subpoena) and where the access requested would result in ?significant burdens? to SEC, including limiting its own access and interfering with the ability to view files

Nature of Case: Enforcement action for accounting fraud

Electronic Data Involved: Access to database

In re Boxer Mgmt. Co., 2009 WL 4250123 (Tex. Ct. App. Sept. 3, 2009)

Dec 01 2009

Key Insight: Court of appeals conditionally granted petition for writ of mandamus and directed the trial court to vacate its order compelling the deposition of defendant?s corporate representative regarding the adequacy of defendant?s response to discovery (using specific question approved by the trial court) where such inquiry would concern the mental impressions of general counsel responsible for discovery (and the likely deponent) which are subject to work product protection; court also determined that absent evidence of discovery abuse, the deposition would constitute an impermissible fishing expedition

Nature of Case: Premesis liability

Electronic Data Involved: ESI

DeBakker v. Hanger Prosthetics & Orthotics E., 2009 WL 5031319 (E.D. Tenn. Dec. 14, 2009)

Dec 01 2009

Key Insight: Where, to obtain an adverse inference the moving party must establish ?that the party having control over the evidence had an obligation to preserve it at the time it was destroyed,? and where plaintiff failed to establish the individual defendant?s control of the spoliated medical notes and failed to establish the facility?s duty to preserve, court denied plaintiff?s motion for sanctions; in so holding, court declined to find a duty to preserve based on the facility?s own document retention policy and stated, ?the mere existence of a document retention policy does not give rise to a duty to preserve every document generated under that policy. The duty to preserve arises only when a party becomes ?reasonably aware of the possibility of litigation

Nature of Case: Action arising from allegations that defective leg brace caused a fall resulting in permanent injury

Electronic Data Involved: Medical notes

Sajda v. Brewton, 2009 WL 4061356 (N.D. Ind. Nov. 20, 2009)

Dec 01 2009

Key Insight: Court granted in part motion to compel documents withheld as privileged where plaintiff sought the “sideswipe report” created by defendants following the relevant accident and where the court found the report had been prepared in the ordinary course of business and was not therefore protected as privileged; as to the computer template used to generate the report, the court found ?the computer template?appears to be a regularly generated report? and thus was not subject to attorney-client or work product protection; court declined to compel production of the ?DOT Accident Register? where such production was prohibited by statute

Nature of Case: Personal injury

Electronic Data Involved: ESI

In re Motor Fuel Temperature Sales Practices Litig., 2009 WL 959491 (D. Kan. Apr. 3, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for an order relieving them of their obligation to ?review and log documents created after the commencement of litigation relating to communications with attorneys about this lawsuit,? despite defendants arguments of extreme burden, where defendants offered no case law in support of their position , where not all documents created post litigation and involving an attorney would be protected from production as privileged, and where defendants made no effort to address the lesser burden of reviewing only potentially relevant email; sympathetic to defendants? arguments that logging each message would be burdensome, court permitted defendants to categorically describe privileged communications in log

Electronic Data Involved: Email communications created after commencement of litigation

Nieves v. Kmart Corp., 2009 WL 1605623 (V.I. June 8, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion for a spoliation instruction where plaintiff failed to demonstrate that the allegedly spoliated videotape ever existed and where a witness testified at deposition that since he didn?t keep the videotape after checking it, it means no film was made of the relevant incident

Electronic Data Involved: Videotape

Catagory:Case Summaries