Case Summaries – Page 281 – Electronic Discovery Law

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

Infor Global Solutions, Inc. v. St. Paul Fire and Marine Ins. Co., 2009 WL 1421576 (N.D. Cal. May 15, 2009)

Dec 01 2009

Key Insight: Where plaintiff claimed electronic documents could not be located due to changes in the computer system upon merging and because of a lack of back up tapes for the relevant time period, court found that plaintiff failed to provide an adequate explanation for its inability to produce, including explaining what happened to the files that previously existed, stated that plaintiff ?needs to show it has conducted a diligent search for responsive documents? and ordered plaintiffs to conduct further searches for responsive documents

Nature of Case: Recovery of legal expenses

Electronic Data Involved: Emails

In re Zurn Plex Plumbing Prods. Liab. Litig., 2009 WL 1606653 (D. Minn. June 5, 2009)

Dec 01 2009

Key Insight: Where defendants objected to plaintiffs’ motion to compel arguing the requested search of emails and various computer drives would be unduly burdensome, court dismissed attorney?s affidavit in support of such objections as ?not compelling evidence? where attorney was not ?an expert on document search and retrieval? but, ?in an effort to control costs,? limited defendants? search to particular locations and ordered the use of 14 terms as supplied by the court or agreed upon by the parties; court invited defendants to renew their objections if the search nonetheless proved overly burdensome by submitting evidence, including evidence from ?computer experts,? in support of those objections

Nature of Case: Claims that defendants’ choice of plumbing fittings caused damage to plaintiffs’ property

Electronic Data Involved: ESI

Midkiff v. Commonwealth, 2009 WL 1851009 (Va. Ct. App. June 30, 2009)

Dec 01 2009

Key Insight: Trial court did not abuse its discretion in admitting reproductions of images found on appellant?s computer at trial where the Commonwealth presented testimony from the forensic scientist and investigator responsible for making the reproductions explaining the process of reproducing the images and confirming that the reproductions accurately represented the images on defendant?s hard drive, and where defendant admitted membership in relevant websites and storing child pornography on his computer; in Virginia, the best evidence rule is limited to writings and was not applicable in this case

Nature of Case: Possession of child pornography

Electronic Data Involved: Reproductions of images on defendant’s hard drive

Wolfe v. Glasgow, 2009 WL 1956687 (M.D. Fla. July 7, 2009)

Dec 01 2009

Key Insight: Court granted Motion to Quash Subpoena Duces Tecum to Non-party upon finding the subpoena ?overly broad on its face? where the subpoena failed to describe the documents sought with any particularity and would have essentially required the large third-party corporation ?to search its entire database of records to produce every document which refers or relates in any way to the named defendants and to [a former employee]?

Nature of Case: Discrimination in violation of Fair Housing Act

Electronic Data Involved: ESI

Stratienko v. Chatanooga-Hamilton County Hosp. Auth., 2009 WL 2168717 (E.D. Tenn. July 16, 2009)

Dec 01 2009

Key Insight: Court denied defendants? objections to magistrate?s finding that sanctions were warranted (including a possible adverse inference) where defendants delayed production of relevant notes for four years and where, despite a duty to preserve based upon specific requests for the hard drive at issue, defendants re-imaged the drive rendering the information thereon unavailable, and where the information stored on defendants? network was also unavailable

Nature of Case: Action arising from physical altercation resulting in plaintiff’s suspension from work

Electronic Data Involved: ESI, hard drive

Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009)

Dec 01 2009

Key Insight: Where plaintiff made a preliminary showing of spoliation, including testimonial evidence from defendant?s 30(b)(6) deponent that no one talked to her about creating a litigation hold policy and deposition testimony from defendant?s witness that he didn?t save anything, court ordered the production of defendants litigation hold letters (with information unrelated to the litigation hold redacted); court reasoned that ?if defendants deleted emails that should have been preserved, this was a relevant factor for the court to consider when it decided whether it was prohibitively burdensome or expensive for the Defendants to retrieve its archived emails.?

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Litigation hold letter

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

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