Case Summaries – Page 280 – Electronic Discovery Law

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

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

Johnson v. U.S. Bank Nat?l Assoc., 2009 WL 4682668 (S.D. Ohio Dec. 3, 2009)

Dec 01 2009

Key Insight: Court granted motion to serve preservation subpoena on third-party prior to the Rule 26(f) conference where plaintiff showed good cause for such a subpoena, including the potential relevance of the documents and the danger of spoliation where the company had been ?dormant? since 2006, and where the subpoena was narrowly tailored to prevent spoliation and did not impose an immediate obligation to produce documents

Nature of Case: Class action

Electronic Data Involved: ESI

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

Kumar v. Hilton Hotels Corp., 2009 WL 1683479 (W.D. Tenn. June 16, 2009)

Dec 01 2009

Key Insight: Court endorsed ?middle ground? approach to a determination of the waiver of privilege, as adopted by FRE 502, and ordered the return of privileged and work product documents produced by defendant upon finding that the production was inadvertent, that defendant took reasonable steps to prevent disclosure, that counsel took immediate steps to rectify the error and that ?the number and magnitude of the disclosures in light of the overall production weigh[ed] against waiver?

Electronic Data Involved: Privileged email and hard copy

Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)

Dec 01 2009

Key Insight: Where, as a result of the autofill function in email, defendant mistakenly sent a privileged communication to a third party which was thereafter forwarded to opposing counsel in the litigation, court undertook waiver analysis pursuant to ER 502 and found that privilege was not waived where defendant disclosed the communication inadvertently, where defendant?s reliance on ?a system that had worked in particular way in the past? was reasonable to prevent disclosure, and where defendant?s counsel took immediate steps to rectify the error upon learning of the disclosure

Electronic Data Involved: Privileged email

Catagory:Case Summaries