Case Summaries – Page 284 – Electronic Discovery Law

In re Nuvaring Prod. Liab. Litig., 2009 WL 2486330 (E.D. Mo. Aug. 11, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for cost sharing for their review and production of electronically stored information where the parties had implicitly agreed to be responsible for their own expenses, where plaintiffs already took steps to eliminate the cost to defendants of repeatedly producing documents, and where defendants failed to establish that plaintiffs? request had caused undue burden or expense or that they would in future; court instructed defendants to file motions for protective orders specifically identifying the requests creating the burden and expense to allow the court to address the objections

Nature of Case: Products liability

Electronic Data Involved: ESI

Donnelly v. NCO Fin. Sys., Inc., 2009 WL 5551377 (N.D. Ill. Dec. 16, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel defendant to produce a list of all persons it called on cellular telephones within particular area codes, despite defendant?s claim that such production would be unduly burdensome and minimally probative and that it would need to create special programs to extract the information which would take ?several hundred hours,? where court determined plaintiff?s need for the information outweighed the burden in producing it

Nature of Case: Class action

Electronic Data Involved: ESI

People v. Buckner, 228 P.3d 245 (Colo. App. 2009)

Dec 01 2009

Key Insight: Court held admission of defendant?s cell phone was not error and did not constitute impermissible hearsay where the prosecution sought to show that an undercover officer?s number showed up on defendant?s phone, where the phone was authenticated by the officer?s testimony, and where the telephone was not a ?person? or ?declarant? making ?a communicative ?statement? within the meaning of the relevant hearsay rule; court rejected argument that admission of phone was error because it contained other phone numbers, texts, etc. where defendant failed to show that he was prejudiced and failed to identify any particular message, etc. that the jury would have obtained from the phone

Nature of Case: Criminal

Electronic Data Involved: Cellular phone

Fells v. Virginia Dept. of Transp., 605 F. Supp. 2d 740 (E.D. Va. Mar. 25, 2009)

Dec 01 2009

Key Insight: Identifying a difference between costs expended for converting a paper document into an electronic one and creating electronically searchable documents, the court denied defendant?s request for recovery of costs related to ?electronic records initial processing, Metadata extraction, [and] file conversion?

Nature of Case: Employment litigation

Grand River Enters. Six Nations, Ltd. v. King, 2009 WL 330213 (S.D.N.Y. Feb. 9, 2009)

Dec 01 2009

Key Insight: District Court affirmed denial of plaintiff?s motion for an order compelling the production of ?econometric data? previously produced to the FTC, and the computer programs used to calculate it, because the data was of limited relevance, because the risk created by disclosure of the sensitive information outweighed the limited benefit to plaintiffs, and because the calculations for which the data was necessary had already been performed in another case and thus were available from an alternative source

Electronic Data Involved: Econometric data and computer programs

Flying J. Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1835000 (D. Utah June 25, 2009)

Dec 01 2009

Key Insight: Where plaintiffs? request for production sought both data and summaries of data, court granted plaintiffs? motion to compel production of the requested data but found defendants were not required to compile or summarize information in their response (?[A] request for production cannot require a responding party to compile and summarize.?); court rejected defendant?s argument that production of the requested data would be unreasonably burdensome without reciprocal productions from plaintiff finding ?[a] party is not excused from making disclosures because ?another party has not made it disclosures.??

Electronic Data Involved: Transaction data from defendant’s database(s)

Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 WL 4725297 (E.D. Mo. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where a party to the litigation forwarded an email from his attorney to a third party, the court ruled that the attorney-client privilege had been waived because there was no shared legal interest between the litigant and the third party and thus the common interest doctrine did not apply but held that the protection provided by the work product doctrine had not been waived where the email was forwarded to ?a nonadversary third party? and where there was no basis for finding it likely that the third party would not keep the email confidential

Electronic Data Involved: Privileged email

Knights Armament Co. v. Optical Sys. Tech., Inc., 2009 WL 331608 (M.D. Fla. Feb. 10, 2009)

Dec 01 2009

Key Insight: Finding that defendant?s delay in producing a privilege log and the insufficiency of the entries therein supported a finding of waiver, court nonetheless declined to impose the ?extreme sanction? of waiver as to the actual privileged communications but held that defendants had failed to establish that the attached ?preexisting business records? were privileged or protected and ordered the them produced

Nature of Case: Trademark infringement, false advertising, unfair competition, and other claims

Electronic Data Involved: Emails

In re Apotex, Inc., 2009 WL 618243 (S.D.N.Y. Mar. 9, 2009)

Dec 01 2009

Key Insight: Concluding that discovery requests were unduly intrusive and burdensome, court vacated grant of permission to obtain discovery for use in Canadian litigation and quashed the resulting subpoena because responding to the subpoena would require substantial effort on the part of a non-party because of the passage of time, because relevant data was not readily available from a database, as anticipated, due to the organizational structure of the database, and because a privilege review requiring subs6tantial resources would likely need to be undertaken

Nature of Case: Canadian litigation

Electronic Data Involved: ESI from database

Hearst v. State, 2009 WL 1037730 (N.Y. Sup. Ct. Apr. 16, 2009)

Dec 01 2009

Key Insight: Where government entities were not required to prepare any record not already possessed or maintained by such an entity in response to a FOIL request and where state agency argued a response to petitioner?s request would require such preparation to protect government employee?s social security numbers, court agreed with agency and denied petitioners? requests as stated but ordered production of data extracted using petitioners? suggested method, despite acknowledgement of inferiority of resulting information, where such extraction would substantially accomplish petitioners? objectives but maintain state employees? privacy protection

Nature of Case: FOIL request

Electronic Data Involved: ESI, metadata, databases

Catagory:Case Summaries