Case Summaries – Page 280 – Electronic Discovery Law

Bass v. Miss Porter?s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009)

Dec 01 2009

Key Insight: Upon in camera review of all documents produced to plaintiff by Facebook pursuant to subpoena, and in response to plaintiff?s objection to producing all such documents on the grounds that many were irrelevant and immaterial, court found ?no meaningful distinction? between the pages produced and the pages withheld and stated that ?Facebook usage depicts a snapshot of the user?s relationship and state of mind at the time of the content?s posting? and that ?relevance is more in the eye of the beholder? such that production should not be limited to plaintiff?s determination of what may be ?reasonably calculated to lead to the discovery of admissible evidence? and ordered the production of all documents produced by Facebook to defendants, rather than the smaller subset previously provided

Nature of Case: Claims arising from alleged bullying and harassment of private school student

Electronic Data Involved: Facebook

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F. Supp. 2d 878 (N.D. Ohio 2009)

Dec 01 2009

Key Insight: Where plaintiff settled its claim of intentional spoliation against one defendant no longer in the case but failed to bring that claim against the defendants that remained and where the evidence was undisputed that the defendant who had settled all claims and was no longer a party to the litigation had maintained exclusive custody and control of the at-issue hard drives and plaintiff offered no evidence of the remaining defendants? involvement in destroying the relevant hard drives, the court held that the remaining defendants could not be sanctioned under either Ohio law or Federal law

Nature of Case: Breach of contract, misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: Hard drives

Zhang v. Ing Direct, 2009 WL 234487 (D. Del. Jan. 29, 2009)

Dec 01 2009

Key Insight: Where, in response to request for documents indicating an effort to find work, defendant produced a list of emails and screen shots from his computer, but not the emails themselves, court found defendants response inadequate and ordered production of all relevant documents in his possession

Electronic Data Involved: Emails

Green v. Fluor Corp., 2009 WL 1668376 (M.D. La. June 11, 2009)

Dec 01 2009

Key Insight: Where defendants failed to request production of a photograph taken by cell phone in electronic format and later contested plaintiff?s format of production, court denied defendants? motion to compel production and inspection upon noting defendants? failure to contest the photos authenticity or to show that viewing the original would provide information not already in their possession and upon noting Rule 34?s instruction that a party need not produce the same electronically stored information in more than one form

Electronic Data Involved: Photograph taken with cellular phone

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

GW Equity LLC v. Xcentric Ventures LLC, 2009 WL 62168 (N.D. Tex. Jan. 9, 2009)

Dec 01 2009

Key Insight: Court adopted magistrate judge?s recommendations and denied plaintiff?s motion for sanctions for intentional spoliation of website content, despite defendants’ failure to suspend its policy allowing content to be edited, where evidence showed that no edits were made to the content at issue and thus plaintiff suffered no prejudice

Nature of Case: Defamation

Electronic Data Involved: Website contents

Grochinski v. Schlossberg, 402 B.R. 825 (N.D. Ill. 2009)

Dec 01 2009

Key Insight: U.S. District Court affirmed bankruptcy court?s sanction that facts alleged against defendant would be taken as established and that defendant was prohibited from opposing trustee?s claims against him where forensic evidence indicated that defendant destroyed evidence by installing cleaning software and by installing new operating systems on relevant computers despite his ongoing duty to preserve

Nature of Case: Adversary action alleging fraudulent transfer

Electronic Data Involved: ESI, hard drives

Mintel Int?l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D. Ill Apr. 17, 2009)

Dec 01 2009

Key Insight: District Court found Magistrate Judge?s decisions denying plaintiff?s motions to compel third-party?s production of forensic image of its computer systems or a report from those systems ?were neither clearly erroneous or contrary to law? where Magistrate denied the motions in light of plaintiffs lack of diligence, contradictory opinions from experts, and factual evidence indicating a minimal amount of relevant data on third-party?s system and where Magistrate was therefore within the scope of her discretion

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: ESI, forensic image of hard drive

Lucas v. Old Navy, LLC, 2009 WL 1172710 (M.D. La. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued she was entitled to a presumption that defendant had constructive notice of the hanger on the floor that allegedly caused her injuries because defendant failed to preserve the surveillance tape which would have proven such notice, but where plaintiff failed to request preservation of the relevant tape and failed to notify defendant of her intent to sue resulting in the loss of the tape from the system after 60 days, and where plaintiff offered no evidence of defendant?s bad faith, court declined to rely on such a presumption and granted defendant?s motion for summary judgment

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance videotape

Catagory:Case Summaries