Case Summaries – Page 280 – Electronic Discovery Law

Sony BMG Music Entertainment v. Tenebaum, , 2009 WL 1651338 (D.R.I. June 10, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion to compel compliance with third party subpoena to allow access to the hard drive of the parents of defendant accused of copyright infringement in a music downloading case where parents were not parties to the action and where the computer was purchased after defendant moved out and thus plaintiffs failed to establish likelihood of the discovery of relevant information sufficient to warrant intrusion into parents? privacy

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive belonging to third party

State v. Hall, 2009 WL 1751473 (Minn. Ct. App. June 23, 2009) (Unpublished)

Dec 01 2009

Key Insight: Appellate court affirmed (on alternative grounds) trial court?s denial of defendant?s motion to compel production of the Intoxilyzer 500EN source code where defendant failed to present any evidence of the source code?s relevance beyond his ?bare assertion that he must have access to the source code in order to effectively challenge his test result? and thus ?failed to meet the standard necessary for compelled disclosure?

Nature of Case: Driving while impaired

Electronic Data Involved: Source code

State v. Bernini, 2009 WL 922471 (Ariz. Ct. App. Apr. 7, 2009)

Dec 01 2009

Key Insight: Court of Appeals found ?[t]he respondent judge erred as a matter of law and abused her discretion in ordering the state to produce source code material for the Intoxilyzer 8000 that it did not possess and had been unable to obtain, without any evidence the state had “better access” than defendants to what CMI maintains are trade secrets? and vacated trial court?s order directing the state to obtain the requested code

Nature of Case: Consolidated appeal of defendants charged with DUI

Electronic Data Involved: Source code of Intoxilyzer 8000

Doctor’s Assocs., Inc. v. QIP Holder LLC, 2009 WL 1683628 (D. Conn. Feb. 26, 2009)

Dec 01 2009

Key Insight: Special master recommended granting in part plaintiff?s motion to compel documents withheld as subject to attorney-client privilege or the work-product doctrine for several reasons, including that the privilege log was incomplete based on plaintiff?s failure to log each message in an email string as a separate and unique document pursuant to Rhoads Industries, Inc. v. Building Materials Corp. of America, et al., 2008 U.S. Dist. LEXIS 96404 (E.D.PA.2008); special master noted, ?it would be impossible for the party seeking discovery to challenge a communication or document that he does not know exists?; recommendation includes discussions of attorney-client privilege, the work-product doctrine, and the common interest privilege

Nature of Case: Violations of Lanham Act, Violation of Connecticut Unfair Trade Practices Act, and commercial disparagement

Electronic Data Involved: ESI

El Badrawi v. Dep?t Homeland Sec., 258 F.R.D. 198 (D. Conn. 2009)

Dec 01 2009

Key Insight: Granting in part and denying in part defendant?s motion to compel production of printouts and electronic information pertaining to defendant from government?s National Crime Information Center Database, court ordered portions of the information likely to lead to weakening of government programs (and other alleged harms) and subject to the law enforcement privilege redacted but for the remaining information to be produced; redactions were dictated by the court upon en camera review

Nature of Case: Abuse of process claim arising from alleged improper detention

Electronic Data Involved: All documents related to plaintiff from the National Crime Information Center Database

Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009)

Dec 01 2009

Key Insight: Court ordered third party, AOL, to show cause why it should not be held in contempt for failing to provide a response to defendant?s motion to compel as ordered by the court and gave leave to defendant to commence discovery on AOL?s ability to retrieve requested emails, among other topics, following contradictory representations from AOL and plaintiff regarding the same; court also noted plaintiff?s grant of permission to AOL to produce his emails and that defendant?s subpoena had been appropriately limited as to scope and thus ordered AOL to produce all responsive emails to plaintiff for review prior to production to defendant

Nature of Case: Civil rights action

Electronic Data Involved: Email

People v. Roberts, 2009 WL 3380019 (N.Y. App. Div. Oct. 22, 2009)

Dec 01 2009

Key Insight: Where, based on chain of custody testimony, the trial court admitted a videotape discovered by defendant?s roommate and given to the police, but where there was no testimony concerning the making of the videotape or where it was kept or who had access to it during the nearly three year period from the time of its making to its discovery, and where the appellate court acknowledged that ?because films are so easily altered, there is a very real danger that deceptive tapes, inadequately authenticated, could contaminate the trial process,? appellate court found admission of the tape was in error and that the error was not harmless and ordered a new trial

Nature of Case: Sex abuse

Electronic Data Involved: Videotape

Palm Bay Int., Inc. v. Marchesi Di Barolo, S.P.A., 2009 WL 3757054 (E.D.N.Y. Nov. 9, 2009)

Dec 01 2009

Key Insight: Noting a lack of any indication that plaintiff objected to production in electronic format and highlighting the fact that electronic discovery is permitted under the Federal Rules, court ordered production of discovery in electronic format and directed the parties to confer to determine the best method of production; upon defendant’s assertion that plaintiff failed to produce certain relevant communications as evidenced by the production of previously unseen communications by a third party, court declined to impose sanctions absent evidence of bad faith but indicated a willingness to re-open depositions upon defendant?s submission of subjects to be pursued therein

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Carolina Materials, LLC v. Continental Cas. Co., 2009 WL 4611519 (W.D.N.C. Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production

Nature of Case: Insurance contract dispute

Electronic Data Involved: ESI on relevant computers and servers

Convertino v. U.S. Dep?t of Justice, 674 F. Supp. 2d 97(D.D.C. 2009)

Dec 01 2009

Key Insight: Emails between employee and counsel using work computer were protected as privileged where employer did not ban personal use of the company email and where employee was unaware of employer?s regular access to his emails and thus had a reasonable expectation of privacy; privilege was not waived, despite employer?s access to the emails, where employee had ?no intention of allowing?his employer, to read the emails? and disclosure was thus inadvertent and where he took reasonable steps to prevent disclosure by deleting the emails as they came into his account and by filing a motion to intervene to assert the privilege upon learning of his employer?s possession of the emails and their possible disclosure in litigation

Nature of Case: Violations of Privacy Act

Electronic Data Involved: Privileged emails

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