Case Summaries – Page 284 – Electronic Discovery Law

S.E.C. v. Leslie, 2009 WL 4724242 (N.D. Cal. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where defendant produced responsive documents after the close of discovery and explained that he believed the documents had been previously produced by his prior employer based on his misunderstanding that all documents saved to his personal computer were also saved on the employer?s network (and thus collected from that source), the court reasoned that ?a trial on the merits of the case outweighs and prejudice to the plaintiff?, that the plaintiff had had more than a month to complete the review of the newly produced documents, and that defendant had fulfilled his obligation to supplement discovery and denied defendant?s motion to exclude plaintiff?s use of the documents; court allowed defendant to depose plaintiff for an additional two hours

Electronic Data Involved: Late produced ESI

Viacom Int?l, Inc. v. YouTube Inc., 2009 WL 102808 (N.D. Cal. Jan. 14, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of third party?s materials related to plaintiffs despite objections where documents sought were relevant and where the alleged burden was insufficient in light of probable reimbursement to third party by plaintiffs, plaintiffs? performance of the necessary privilege review, and third party?s prior success in reducing the volume of responsive documents; where defendants sought third party material unrelated to plaintiffs, court ordered defendants and third party to meet and confer regarding scope of production and ordered defendants to bear the cost; court also ordered meet and confer regarding format of production, including specific consideration of granting defendants access to Kroll database where documents were stored

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

AHF Cmty. Dev., LLC v. City of Dallas, 2009 WL 348190 (N.D. Tex. Feb. 12, 2009)

Dec 01 2009

Key Insight: Where city inadvertently produced privileged documents due to its conversion to new software but then allowed its witness to testify regarding those documents at deposition without objection, court held privilege had been waived and declined to compel the documents? return

Nature of Case: Violations of Fair Housing Act

Electronic Data Involved: Email

McClendon v. Challenge Fin. Investors Corp., 2009 WL 589245 (N.D. Ohio Mar. 9, 2009)

Dec 01 2009

Key Insight: Revenue report from database properly considered as business record under ER 803(6) where report was based on data entered and preserved in database in the regular course of business, where the database was regularly maintained and updated by the company?s accountants, where the accountants had personal knowledge of the information entered into the database, and where the foundation for its admission was provided by a ?qualified witness? familiar with the record-keeping procedures of the database

Nature of Case: Class action arising from alleged violations of Ohio Mortgage Act and common law violations of fiduciary duty

Electronic Data Involved: Database report

In re Tamer, 877 N.Y.S.2d 874 (Surr. Ct. N.Y. 2009)

Dec 01 2009

Key Insight: Finding electronic production sufficient to satisfy the relevant statute requiring production of documents as kept in the regular course of business or organized to correspond to the category of the request, court granted objectants motion to compel trustees to accept production in electronic form and not hard copy and ordered such production to be accompanied by an index identifying the document produced in response to each demand and the electronic file where the document was stored

Nature of Case: Contested accounting proceeding

Electronic Data Involved: Production of documents in electronic form

Dilley v. Metro. Life Ins., Co., 256 F.R.D. 643 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Upon finding that because of the ?relative inaccessibility of the information sought?responding to the request would be overly burdensome? where defendant was unable to query its database for the information requested and upon finding that the information sought would not satisfy plaintiff?s purpose without additional information, court found that defendant had established that ?the significance of the discovery to the issues in the present case is substantially outweighed by the burden? and granted defendant?s motion for a protective order

Nature of Case: Wrongful denial of claim for disability benefits

Electronic Data Involved: Database contents

Covad Commc?ns Co. v. Revonet, Inc., 258 F.R.D. 5 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where parties failed to reach agreement regarding inspection protocol for defendant?s relevant database, court stepped in and ordered plaintiff?s expert to image relevant servers and PCs and to search those systems for relevant documents; having generally declined to order searching of defendant?s exchange servers absent more than conclusory assertions of a deficient production, court found compelling justification for a comparative search of certain exchange servers where, in light of a previous server crash and subsequent restoration of the content, questions arose regarding the identification of all responsive emails

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: Database, emails, ESI

Bolger v. D.C., 608 F. Supp. 2d 10 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where defendants admitted destroying relevant radio communications but argued that such destruction was not sanctionable because it unintentionally occurred as the result of a routine operation of the police communication systems and because the information destroyed was of minimal relevance, court found that defendants were under an obligation to preserve and had (at least) negligently destroyed the radio communications, but declined to order an adverse inference because plaintiff?s proffer of evidence regarding the communications? relevance and the proper inference from their destruction was ?too speculative?

Nature of Case: ? 1983 Action against D.C. police for constitutional violations

Electronic Data Involved: Radio communications (“radio runs”)

Telequest Int?l Corp. v. Dedicated Business Sys., Inc., 2009 WL 690996 (D.N.J. Mar. 11, 2009)

Dec 01 2009

Key Insight: Where forensic examination of defendant?s hard drive revealed the deletion of electronic evidence using wiping software and where at the time of the deletion defendant was subject to a duty to preserve, court declined to impose default judgment but ordered an adverse inference and monetary sanctions in an amount to be determined

Nature of Case: Claims of fraud, misappropriation of confidential and proprietary information, breach of fiduciary duties, and breach of contract

Electronic Data Involved: ESI, contents of hard drive

In Re Nat?l Century Fin. Enters., Inc. Fin. Inv. Litig., 2009 WL 2169174 (S.D. Ohio July 16, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part a motion for sanctions based on multiple plaintiffs? alleged delay and spoliation, including a failure to preserve relevant evidence, and ordered sanctions including excluding certain plaintiffs from affirmatively using late produced documents and allowing the moving party to proffer evidence at trial that it believed would give rise to an adverse inference and entitle it to an adverse jury instruction

Nature of Case: Consolidated actions arising from the collapse of National Century Financial Enterprises, Inc.

Electronic Data Involved: ESI

Catagory:Case Summaries