Case Summaries – Page 280 – Electronic Discovery Law

Vagenos v. LDG Fin. Servs., LLC, No. 09-cv-02672 (E.D.N.Y. Dec. 31, 2009)

Dec 01 2009

Key Insight: Where plaintiff destroyed the original recording of an automated telephone message that was the subject of the litigation but sought to offer an alleged duplicate recording, court denied defendant?s motion to preclude such an offering where defendant failed to establish the requisite ?bad faith? necessary under Fed. R. Evid. 1004(1) and because the evidence was vital to plaintiff?s case but ordered an adverse inference instruction allowing the jury to infer that ?the destroyed portion of the message contained information harmful to plaintiff?s case? where plaintiff and plaintiff?s counsel (who did not instruct plaintiff of his duty to preserve and was responsible for creating the duplicate recording) failed to uphold their duty to preserve evidence in anticipation of litigation

Nature of Case: Violation of Fair Debt Collection Practices Act

Electronic Data Involved: Recording of automated telephone message

U-Haul Int?l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040 (9th Cir. 2009)

Dec 01 2009

Key Insight: Court found ?computer-generated? exhibits summarizing loss adjustment expense payments ?fit squarely within the business records exception to hearsay? and were properly authenticated by the testimony of an employee who, although not responsible for actually inputting each piece of data that was summarized in the exhibit, was sufficiently familiar with the record system that his ?description of the process used to create the summaries was sufficient to authenticate the evidence?

Nature of Case: Breach of insurance contract

Electronic Data Involved: Computer-generated summaries

Maggette v. BL Dev. Corp., 2009 WL 4346062 (N.D. Miss. Nov. 24, 2009)

Dec 01 2009

Key Insight: Where defendants attested to the adequacy of their search for discovery but could not describe their search efforts in detail, court noted its inability to ?say with certainty? whether defendants had fulfilled their discovery obligations and declined to rule on plaintiff?s third motion for sanctions ?until it [was] satisfied that the standards for preservation of electronic evidence?have been met or not met?; court ordered an investigation by a third party expert into ?whether defendants have met the standard for preservation of electronic evidence and disclosed all relevant evidence? with the cost to be borne by defendants

Andrew Corp. v. Cassinelli, 2009 WL 736669 (N.D. Ill. Mar. 19, 2009)

Dec 01 2009

Key Insight: Where court ordered discovery into extent of defendant?s compliance with Settlement Agreement upon plaintiff?s showing that confidential information remained on defendant?s computer system and where defendant?s court ordered search for additional information included retention of discovery firm to search seven computers, an email server, and a scratch drive using 26 terms based on the content of the previously discovered confidential information, court found the search ?deficient? and that defendant had failed to confirm that all information subject to the Settlement Agreement was deleted and appointed a Special Master, at defendant?s expense, and ordered defendant to pay plaintiff?s attorneys fees for its Motion to Enforce and Supplement

Electronic Data Involved: ESI

United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009)

Dec 01 2009

Key Insight: Where request for production was unduly burdensome in light of the cost of production and necessary labor to comply, despite the requesting party?s attempt to narrow the scope, and where the court found the request overly broad and that it sought information irrelevant to the litigation, court declined to compel production in response to the particular request, but granted in part other portions of the motion to compel

Electronic Data Involved: ESI

D.G ex rel. Stricklin v. Henry, 2009 WL 455266 (N.D. Okla. Feb. 20, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion seeking production of emails from particular custodians and rejected defendant?s argument that cost of production should be shifted where defendants did not challenge the relevance of the emails at issue, where plaintiff?s ?reasonably limited their request to avoid undue burden? to defendants, and where the court?s consideration of the Zubulake factors resulted in a determination that cost shifting was not appropriate

Nature of Case: Class action against DSHS

Electronic Data Involved: Emails

Moore v. Am. Family Mut. Ins. Co., 2009 WL 886848 (D. Ariz. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where defendants recreated documents sought by plaintiff using raw data after destroying copies of the original document pursuant to its document retention policy and where plaintiff offered no evidence to ?reasonably question? such a practice or that any data was destroyed in anticipation of litigation, court found insufficient evidence to support an adverse inference

Nature of Case: Breach of contract claims arising from denial of insurance claim

Electronic Data Involved: Original declaration sheet

Surplus Source Group, LLC v. Mid-Am. Engine, 2009 WL 961207 (E.D. Tex. Apr. 8, 2009)

Dec 01 2009

Key Insight: Where the need for a third search of defendants? electronically stored information resulted from plaintiffs? delay in providing search terms, court ordered defendants to undertake third search, using terms provided by plaintiffs, but ordered plaintiffs to bear the cost of the third search, up to the amount equal to the second search, reasoning that such an order would essentially result in plaintiffs bearing the cost of the second search which was insufficient because of their delay

Nature of Case: Claims arising from defendants? alleged failure to split profits from sales of industrial equipment

Electronic Data Involved: ESI

Mauna Kea Beach Hotel Corp. v. Affiliated FM Ins. Co., 2009 WL 1227850 (D. Haw. May 1, 2009)

Dec 01 2009

Key Insight: In insurance dispute, where defendant appealed the order of the Magistrate arguing that discovery requests, even as limited by Magistrate?s order, were unreasonable and burdensome in light of need to review thousands of claims without the capability to search electronically, District court ruled that discovery of related claims should be limited to claims from Hawaii and ordered production of such claims from 2003 to present

Nature of Case: Claims of bad faith, breach of contract, and unjust enrichment arising from insurance dispute

Electronic Data Involved: Electronically stored claims information

Continental Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 1098461 (S.D. Fla. Apr. 22, 2009)

Dec 01 2009

Key Insight: Where defendant accessed relevant files after being placed on notice of litigation and thus spoliated metadata, but where defendant?s testimony regarding her lack of knowledge that accessing the files would destroy metadata was credible and where plaintiffs failed to meet their burden of showing bad faith, plaintiffs? motion for adverse inference was denied

Nature of Case: Violations of Computer Fraud and Abuse Act, breach of restrictive covenant contracts, tortious interference with customer relationships, among others

Electronic Data Involved: Metadata

Catagory:Case Summaries