Case Summaries – Page 284 – Electronic Discovery Law

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Chambers v. U.S. Dept. of Interior, 568 F.3d 998 (2009)

Dec 01 2009

Key Insight: Court reversed and remanded grant of summary judgment on the issue of the adequacy of the government?s search in response to plaintiff?s FOIA request where a material fact existed as to whether the DOI intentionally destroyed the requested material before undertaking its search which would prevent a finding that the search was adequate

Nature of Case: Freedom of Information Act / FOIA

Electronic Data Involved: Performance appraisal

Sentis v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009)

Dec 01 2009

Key Insight: Where, when imposing discovery sanctions, trial court improperly relied on unreliable evidence of misconduct by plaintiff, including accusations of bribery proffered by defendant following receipt of an anonymous phone tip, where the other findings in support of the sanction were ?close questions,? and where there were accusations of judicial bias and the appearance of judicial partiality, circuit court of appeals reversed the judgment of the district court dismissing plaintiff?s claims and remanded the matter for further proceeding before a different judge

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

Covad Commc?ns Co. v. Revonet, Inc., 2009 WL 5377698 (D.D.C. Aug. 25, 2009)

Dec 01 2009

Key Insight: Where plaintiff represented that defendant had not fulfilled production obligations pursuant to the court?s order, court ordered defendant to respond to questions as to the completeness of its production and other related topics and affirmed its prior order requiring the re-production of 35,000 pages of emails previously produced in hard copy, despite the alleged burden of doing so; court also ordered defendant to respond to questions regarding the production of ESI, including spreadsheets, previously produced in hard copy and noted, ?Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.?

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: ESI

Reeves v. Case W. Univ., 2009 WL 3242049 (N.D. Ohio Sept. 30, 2009)

Dec 01 2009

Key Insight: Where it remained ?entirely unclear? that defendant performed a ?full and thorough search? for responsive ESI, court ordered defendant to perform a ?comprehensive examination of all electronic storage? and to provide certification of the search to plaintiff; as sanction for ?failing to even search for certain evidence,? court prohibited defendant from re-filing its motion for summary judgment as to two of plaintiff?s claims

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

SEC v. Strauss, 2009 WL 3459204 (S.D.N.Y. Oct. 28, 2009)

Dec 01 2009

Key Insight: Court found SEC had control of Delloitte & Touche database for purposes of Rule 34 analysis where SEC had both the practical ability and legal right to obtain the working papers contained therein but declined to compel SEC to grant access to defendant where he could obtain independent access to the database himself (by subpoena) and where the access requested would result in ?significant burdens? to SEC, including limiting its own access and interfering with the ability to view files

Nature of Case: Enforcement action for accounting fraud

Electronic Data Involved: Access to database

In re Boxer Mgmt. Co., 2009 WL 4250123 (Tex. Ct. App. Sept. 3, 2009)

Dec 01 2009

Key Insight: Court of appeals conditionally granted petition for writ of mandamus and directed the trial court to vacate its order compelling the deposition of defendant?s corporate representative regarding the adequacy of defendant?s response to discovery (using specific question approved by the trial court) where such inquiry would concern the mental impressions of general counsel responsible for discovery (and the likely deponent) which are subject to work product protection; court also determined that absent evidence of discovery abuse, the deposition would constitute an impermissible fishing expedition

Nature of Case: Premesis liability

Electronic Data Involved: ESI

Jneid v. Tripole Corp., 2009 WL 4882654 (Cal. Ct. App. Dec. 17, 2009)

Dec 01 2009

Key Insight: Appellate court reversed the judgment of the trial court and remanded the case for a new trial upon finding that defendant ?did not act intentionally? when if failed to produce certain documents before trial and that the evidentiary and issue sanctions imposed, including preclusion of use of certain documents, preclusion from introducing certain evidence, preclusion of certain arguments, and an adverse jury instruction, were ?more severe than necessary? where an order for defendant to pay all costs incurred by the completed trial (as suggested by defendant) was sufficient to rectify the prejudice to the plaintiff; on remand, court ordered trial court to determine the cost incurred by plaintiffs and cross-complainant in connection with trial and the costs incurred because of the late production of documents and for defendant to pay such costs

Nature of Case: Breach of employment contracts

Electronic Data Involved: Computer embedded information

Kandel v. Brother Int?l Corp., 2009 WL 5454888 (C.D. Cal. Dec. 15, 2009)

Dec 01 2009

Key Insight: Where defendants presented evidence that 110 privileged documents were produced despite extensive preventative measures, including key word searching and manual review, and where defense counsel took immediate action to identify all privileged materials that had been produced and to request plaintiff return, sequester, or destroy the documents pursuant to the parties? clawback agreement, court found that ?defendants ha[d] shown their production?was inadvertent within the meaning of?the protective order? and denied plaintiff?s motion for an order declaring 28 documents produced by defendants to be not privileged

Nature of Case: Class action

Electronic Data Involved: Privileged communications

United States v. Haymond, 2009 WL 2835398 (D. Okla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Where law requires denial of a request to copy or reproduce child pornography as long as the material is made ?reasonably available? to defendant and where defendant?s expert claimed an inability to locate the alleged illegal images on the forensic copy of the hard drive to which he was provided access, court indicated reticence to order the production of ?file data? to assist in the location of relevant images on the drive, but ordered defendant?s expert to instead coordinate access to the previously provided copy and for the government to assist his efforts by providing ?software keys? in there possession ? if effort failed, court indicated willingness to consider ordering production of the requested ?sector and file? information to assist defendant?s expert?s examination

Nature of Case: Child pornography

Electronic Data Involved: Images on hard drive

Catagory:Case Summaries