Case Summaries – Page 282 – Electronic Discovery Law

Boyer v. Gildea, 2009 WL 230646 (N.D. Ind. Jan. 29, 2009)

Dec 01 2009

Key Insight: Finding emails between trustee?s former and current counsel and an email between current counsel and a fact witness subject to protection from disclosure under the work production doctrine and noting defendant?s failure to assert substantial need or inability to obtain equivalent materials by other means, court denied defendant?s motion to compel production of the emails at issue

Nature of Case: Adversary proceeding alleging statutory violations by entering into agreement to control price of auction assets

Electronic Data Involved: Emails

Synergetics USA, Inc. v. Alcon Labs., Inc., 2009 WL 2016795 (S.D.N.Y. July 9, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion for the return of privileged documents where the documents were inadvertently produced following a ?multi-layered? review, where defendants promptly requested the return of the documents within three days of learning of their disclosure, and where ?fairness would not be offended by restoring immunity to [the] documents;? some documents subject to defendants? motion were determined not to be privileged and thus were not subject to return

Nature of Case: Violation of antitrust laws by tying sales of light tubes to sales of Accurus cassettes, predatory pricing

Electronic Data Involved: Emails

Ford Motor Co. v. U.S., 2009 WL 2176657 (E.D. Mich. July 21, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part plaintiff?s motion to compel the government to produce documents in nine categories, including compelling the government to provide declarations outlining its search methodology and efforts and finding that the government need not attempt to recover emails that had been overwritten because of undue burden and costs, among other things; court rejected government argument that it had not produced a privilege loge because ?producing such a log would defeat [its] unduly burdensome objections? and ordered an ?adequately detailed privilege log for the responsive documents that it withholds from production?

Nature of Case: Action to recover interest accrued on overpayments of corporate income tax

Electronic Data Involved: ESI

Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009)

Dec 01 2009

Key Insight: Court found emails ?not reasonably accessible? in light of representations of undue burden, including the need for vendor assistance to accomplish the necessary searching, and, upon shifting the burden to defendant to show ?good cause? for the additional emails sought, ordered some specific searching using specific terms and for the parties to confer to identify additional custodians

Nature of Case: Copyright infringement

Electronic Data Involved: Emails, ESI

Elec. Machinery Enters., Inc. v. Hunt. Constr. Group, Inc., 2009 WL 2710266 (Bankr. M.D. Fla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Despite finding defendants ?intentionally destroyed relevant documents at a time when litigation was foreseeable? the court declined to award sanctions where it was not established the documents were ?critical for proving? plaintiff?s case, a prerequisite for such sanctions under Florida law

Nature of Case: Action for breach of contract, spoliation, breach if implied warranties

Electronic Data Involved: Hard copy and ESI

MRT, Inc. v. Vounckx, 299 S.W.3d 500 (Tex. Ct. App. 2009)

Dec 01 2009

Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve

Nature of Case: Misrepresentations and fraudulent inducement

Electronic Data Involved: Backup tapes

Loyal v. State, 2009 WL 2884147 (Ga. Ct. App. Sept. 10, 2009)

Dec 01 2009

Key Insight: Vice President?s testimony that electronic security log was kept in regular course of business and that data was entered into the log contemporaneously with the events themselves was sufficient to establish a foundation for the admission of the log as a business record where the exception does not require that the foundation be laid by the custodian of records, but only that ?the record offered to prove a transaction be made in the regular course of business and that it is the regular course of business to make the record at the time of the act or transaction?; a witness?s lack of personal knowledge regarding how the records were created ?merely affects the weight given to the evidence?

Nature of Case: Criminal/theft

Electronic Data Involved: Security log indicating when warehouse was locked and unlocked, and the PIN used to access the facility

Consolidated Rail Corp. v. Grand Trunk W. R.R. Co., 2009 WL 5151745 (E.D. Mich. Dec. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s production of 1200 pages ?as they were kept in the normal course of business? was sufficient pursuant to Rule 34 where plaintiff ?identified the document custodians and the range of Bates number for each custodian?s set of documents, along with the date associated with document creation,? where documents were produced in the order they were found on each hard drive, and where email attachments were produced directly following the corresponding email; plaintiff?s failure to arrange emails chronologically was not fatal to plaintiff?s production

Nature of Case: Declaratory judgment action, breach of contract

Electronic Data Involved: ESI, email

Kellogg Brown & Root Int., Inc. v. Altanmia Commercial Mktg. Co., 2009 WL 1457632 (S.D. Tex. May 26, 2009)

Dec 01 2009

Key Insight: Where defendant objected to plaintiff?s bill of costs including costs for data extraction and storage by a third party vendor, court stated that the ?steps that KBR had the third-party vendor perform do not appear to be electronic equivalents of exemplification and copying? , held that the costs were not within the ??exemplification and copying? category of ? 1920? and thus upheld defendant?s objection to those costs

Nature of Case: Declaratory judgment related to a series of contracts for fuled transport overseas

Electronic Data Involved: Extraction and storage costs of ESI

In re Interest of B.H., 2009 WL 2195930 (N.J. Super. Ct. App. Div. July 24, 2009)

Dec 01 2009

Key Insight: Court found edited copy of surveillance tape was properly authenticated and admitted where, pursuant to the N.J. Best Evidence Rule, duplicates are admissible to the same extent as the original unless a question is raised as to the authenticity of the original, which defendant did not do, and where the testimony of the patrolman who viewed the original surveillance tape established that the copy was an accurate duplication of the pertinent parts of the original tape, and where there was no showing of unfairness in the production of the edited tape rather than the original

Nature of Case: Criminal / Robbery

Electronic Data Involved: Copy of surveillance tape

Catagory:Case Summaries