Case Summaries – Page 284 – Electronic Discovery Law

Snoznik v. Jeld-Wen, 259 F.R.D. 217 (W.D.N.C. 2009)

Dec 01 2009

Key Insight: Where testifying expert created and utilized electronic templates which he considered proprietary to create his report, court granted expert?s motion for a protective order and declined to compel production of the templates upon finding that the templates were not relevant to the actual issues at trial, that the defendant failed to show a need for the templates in light of expert?s production of underlying data used to create his report, that the expert properly sought a protective order to address the issues of confidentiality, and that the potential harm to the expert outweighed the potential (non-existent) harm to defendant

Nature of Case: Negligence, breach of implied warranty and express warranty and loss of consortium

Electronic Data Involved: Electronic templates used to create expert report

Canton v. Kmart Corp., 2009 WL 2058908 (V.I. July 13, 2009)

Dec 01 2009

Key Insight: Court declined to order adverse inference for destruction/loss of surveillance video where plaintiff failed to establish that such a video existed and that defendant therefore had a duty to preserve it; court ordered adverse inference for defendant?s inability to produce photographs upon finding defendant did not take ?reasonable precautions? to preserve the evidence despite knowing that litigation was reasonably foreseeable

Robert v. Bd. of County Comm?rs of Brown Count, Kan., 2009 WL 1362530 (D. Kan. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants could not produce a requested email because of damage to author?s and recipient?s computers but where defendants undertook significant effort to search for the email, including a search by the county?s Information Technology Director and inquiry to the County?s email provider about the email?s availability, and where defendant offered to make the author?s computer available for inspection at plaintiff?s expense, court declined plaintiff?s request to ?shift the cost of an independent computer expert? to defendants and denied plaintiff?s motion to compel production of the email

Electronic Data Involved: Email

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Hinojos v. Park City Mun. Corp., 2009 WL 392450 (D. Utah Feb. 17, 2009)

Dec 01 2009

Key Insight: Court granted motion for forensic examination of defendant?s employee?s hard drive for purpose of verifying creation date of relevant evidence, but, finding direct access to employee?s computer ?too risky,? court ordered mutually acceptable independent expert to image computer?s storage space and provide image to plaintiff?s forensic expert for examination of the relevant data files; Plaintiff was to bear costs

Nature of Case: Employment case

Electronic Data Involved: Hard drive

Orbit One Commc?ns, Inc. v. Numerex Corp., 2009 WL 799975 (E.D. La. Mar. 20, 2009)

Dec 01 2009

Key Insight: Court ordered plaintiffs to bear cost of non-party?s production in response to plaintiffs? subpoena where Fed. R. Civ. P. 45 provides for protection of a non-party from undue burden or expense and where the court found the non-party?s expenditure of $6,000 to respond ?significant?; court?s analysis also noted the parties? failure to fix production costs in advance, as discussed in the Advisory Committee Notes, and plaintiffs? awareness of the possibility that the non-party would request reimbursement

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Hape v. State, 903 N.E. 2d 977 (Ind. Ct. App. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where a jury discovered and considered text messages not authenticated separately from a properly admitted cell phone, court found that text messages must be separately authenticated before admission into evidence but declined to find grounds for reversal of defendant?s conviction where the error was harmless in the context of the other evidence against him

Nature of Case: Felony possession of methamphetamines

Electronic Data Involved: Text messages

State v. Denton, 768 N.W.2d 250 (Wis. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court erred in admitting computer generated animation allegedly depicting the events that lead to trial where State failed to provide notice of its intent to use the animation, where the animation was created by a non-expert witness who lacked personal knowledge of the events, and where the State failed to lay a foundation for the evidence based on the incorrect assumption that the animation was merely demonstrative; appellate court determined animation was more prejudicial than probative where it did not merely illustrate a witness?s testimony but rather was ?a collage of information? from each of the State?s witnesses presented as fact

Nature of Case: Attempted kidnapping, false imprisonment, attempted armed robbery

Electronic Data Involved: Computer generated animation

S. Yuba River Citizens League v. Nat?l Fisheries Serv., 2009 WL 1287919 (E.D. Cal. May 6, 2009)

Dec 01 2009

Key Insight: Adopting the majority rule requiring the disclosure of ?all things communicated to [a testifying expert] and considered by the expert in forming his opinion? even if otherwise protected as work product, court established that the test for discoverability was ?whether the documents reviewed or generated by the expert could reasonably be viewed as germane to the subject matter on which the expert has offered an opinion? and ordered production of emails between counsel and testifying expert discussing the declaration or its content and also ordered the production of all previous drafts of expert?s declaration

Nature of Case: Alleged violations of Endangered Species Act

Electronic Data Involved: Drafts of testifying expert’s declarations and emails regarding same between expert and counsel

Commonwealth v. Lanana, 7 Pa. D. & C. 5th 225 (2009)

Dec 01 2009

Key Insight: Where school?s IT manager discovered child pornography on defendant?s personal computer and where upon opening those files the IT manager altered relevant metadata, appellate court upheld trial court?s denial of defendant?s motion for spoliation sanctions because the police did not commit the alleged destruction, because there was no evidence of the IT manager?s bad faith, because both parties had access to the same information, because defendant had an opportunity to explore the loss at trial and because defendant stipulated that the files were child pornography

Nature of Case: Possession of child pornography

Electronic Data Involved: Metadata

Catagory:Case Summaries