Case Summaries – Page 280 – Electronic Discovery Law

Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s objections to defendants? production in pdf format ?without merit? where plaintiff failed to specify the preferred format of production and where absent such specification ?pdf format?is presumptively a ?reasonably useable form?? and similarly dismissed plaintiff?s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff?s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Spooner v. Egan, 2009 WL 2175063 (D. Me. July 21, 2009)

Dec 01 2009

Key Insight: As sanction for defendants late production of relevant ESI and forensic images of relevant hard drives in violation of the court?s order, court declined to impose terminating sanctions but precluded defendants from introducing at trial any documents untimely produced or from presenting witnesses plaintiff first became aware of only in defendants? untimely disclosures; court also ordered defendants to pay plaintiff?s attorney fees and costs

Nature of Case: Copyright infringement

Electronic Data Involved: ESI, forensic images of hard drives

In re Direct Sw., Inc. Fair Labor Standards Act (FLSA) Litig., 2009 WL 2461716 (E.D. La. Aug. 7, 2009)

Dec 01 2009

Key Insight: Where parties disagreed about whether defendants were required to search for ESI using plaintiffs? search terms or using their own, court denied motion for reconsideration and upheld prior order requiring defendants to ?certify that they conducted a complete search using the terms found on plaintiff?s search term list? despite defendants? claims that using such terms would ?produce many false hits and require them to incur costs of $100,000 to produce the ESI?

Nature of Case: Fair Labor Standards Act Litigation

Electronic Data Involved: ESI

Plan Pros Inc. v. Torczon, 2009 WL 3063017 (Sept. 18, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel re-production of financial information in its original Quickbooks format where the information was previously produced following conversion to .xls format which resulted in the loss of metadata and where defendants failed to argue that production in the original format (the form or forms in which it was ordinarily maintained) was not possible

Nature of Case: Copyright infringement

Electronic Data Involved: Financial ESI

Whitlow v. Martin, 2009 WL 3381013 (C.D. Ill. Oct. 15, 2009)

Dec 01 2009

Key Insight: Where third-party presented evidence that responding to subpoena would require searching hundreds of locations, would require the restoration of back up tapes, and would take ?over two years to accomplish and cost hundreds of thousands of dollars,? court modified subpoena to narrow scope of the request, but ordered production of relevant documents, ?even if they [were] not reasonably accessible?

Nature of Case: Allegations of wrongful termination in furtherance of political scheme

Electronic Data Involved: ESI

Beyer v. Medico Ins. Group, 2009 WL 3817211 (D.S.D. Nov. 13, 2009)

Dec 01 2009

Key Insight: Where defendant claimed responding to discovery would require searching 200,000 claim files but where court determined defendant could sort claims files using specific codes, court found defendant?s assertions ?disingenuous? and ordered production of the requested files; where defendant claimed search remained unduly burdensome because of need to convert certain files to allow text searching, court reasoned that ?the fact that answering [request for relevant discovery] will be burdensome and expensive is not in itself a reason for the court?s refusing to order discovery which is otherwise appropriate? and ordered the production of all documents describing defendant?s electronic means of searching and all software used during the relevant timeframe (as requested by plaintiff) if defendant persisted in claiming an inability to search electronically as a basis for refusing to answer discovery

Nature of Case: Bad faith denial of insurance claims

Electronic Data Involved: Electronic claim files

Amobi v. D.C. Dep?t of Corrs., 262 F.R.D. 45 (D.D.C. 2009)

Dec 01 2009

Key Insight: In this opinion authored by Magistrate Judge Facciola, the court conducted an analysis of waiver pursuant to FRE 502 and found that the attorney work-product privilege was waived by the inadvertent production of an attorney-prepared memorandum where defendants claimed ?several reviews of the documents?were undertaken? but offered no indication of the methodology used to review documents for privilege ?let alone any explanation of why these efforts were?reasonable in the context of the demands made upon the defendants? and thus failed to meet their burden of proving that the privilege was not waived

Nature of Case: Claims arising from DOC officer’s removal from duty following an altercation with an inmate

Electronic Data Involved: Attorney-prepared memorandum

Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009)

Dec 01 2009

Key Insight: Where, when producing voluminous documents in response to Fed. R. Civ. P. 33 they must be accompanied by indices ?to guide the interrogating party to the responsive documents? and where ?rules applicable to producing documents under Rule 33(d) are generally applicable to Rule 34?, court ordered defendant to provide more detailed responses to plaintiffs requests for discovery upon defendants? production of 7000 pages and indication that ?all 7000 pages of documents were responsive to each request?; court reasoned, ?Defendant’s claims that the documents are sufficiently organized because they are bates-stamped and scanned into a CD-ROM are unavailing. Defendant did not refer to specific bates numbers when it responded to the discovery requests at issue, and the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant’s duty to sufficiently identify the location of the relevant documents.?

Nature of Case: Breach of faith and breach of fiduciary duty

Electronic Data Involved: ESI

Scheuplein v. City of West Covina, 2009 WL 3087343 (Cal. Ct. App. Sept. 29, 2009)

Dec 01 2009

Key Insight: Where a forensic examiner appointed by the discovery referee submitted a declaration that the emails admitted into evidence were retrieved from plaintiff?s computer and that the printouts were accurate representations of the retrieved messages, and where the emails contained information only the plaintiff would know and the trial court found that ?the emails ?were, at least in part, authenticated by the plaintiff himself?, the appellate court found that there was sufficient evidence to support the trial court?s finding that the emails were genuine

Nature of Case: Violations of Political Reform Act

Electronic Data Involved: Emails

Grasso v. Bakko, 2009 WL 224022 (W.D. Wis. Jan. 29, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel inspection of plaintiff?s computer, despite plaintiff?s conflicting statements regarding the existence of a contract in 2005 and defendant?s resulting belief that plaintiff created the contract on her computer years later, where court determined the inspection would be unduly burdensome and where plaintiff carried the burden to prove the contract existed in 2005, not defendant

Electronic Data Involved: Hard drive

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