Case Summaries – Page 285 – Electronic Discovery Law

Henderson v. U.S. Bank, N.A., 2009 WL 1152019 (E.D. Wis. Apr. 29, 2009)

Dec 01 2009

Key Insight: Stating that Rule 34 does not give a party the right to conduct their own search of an opposing party?s electronic devices and holding that counterclaim plaintiff must request specific categories of information and allow counterclaim-defendants to conduct their own search for responsive data, court denied counterclaim-defendants? motion to compel production of all computers, hard drives, and other devices containing electronically stored information

Nature of Case: Enforceability of confdientiality and non-compete agreements, misappropriation of confidential inforamtion

Electronic Data Involved: Computers, hard drives, electronic storage devices

Capitol Records, Inc. v. Alaujan, 2009 WL 1292977 (D. Mass. May 6, 2009)

Dec 01 2009

Key Insight: Where defendant admitted use of a particular computer to share copy written files but was unable to remember relevant details of the file sharing and put the question of the significance and scope of his infringement at issue, court granted plaintiffs? motion to copy and inspect defendant?s computer but ordered very strict protective order in light of defendant?s significant privacy concerns

Nature of Case: Copyright infringement

Electronic Data Involved: Electronic records related to file-sharing software and metadata associated with music files, including deleted files

Brookhaven Typesetting Servs., Inc. v. Adobe Sys., Inc., 2009 WL 1515661 (9th Cir. June 1, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where, despite defendant?s destruction of source code and other discovery misbehavior the district court declined to impose an adverse inference sanction upon finding that ?there was no evidence to support a finding that [defendant] acted in bad faith and had intentionally destroyed the earlier versions of the source code,? 9th Circuit declined to disturb the trial court?s decision upon finding the trial court?s decision ?not clearly erroneous?

Nature of Case: Copyright infringement, misappropriation of trade secrets, breach of contract

Electronic Data Involved: Source code

Ashman v. Solectron Corp, 2009 WL 1684725 (N.D. Cal. June 12, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where court ordered plaintiff to return documents retained improperly following termination of his employment but allowed him to utilize any such documents produced by defendant in the ?normal course of discovery? and where defendant argued that it need not produce the documents returned by plaintiff if it could not find the documents in its own system as such documents were outside the scope of ?normal? discovery, court ordered defendant to produce the non-privileged and relevant documents because they were within defendant?s ?legal possession, custody and control? and thus subject to disclosure

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Thompson v. State, 210 P.3d 1233 (Alaska Ct. App. 2009)

Dec 01 2009

Key Insight: Appellate court held audio tapes were properly authenticated and admitted into evidence and that trial court did not abuse its discretion upon finding that ?the State presented ample evidence to support the conclusion that the two recordings accurately depicted the two conversations they purported to reproduce? including testimony from victim?s mother who actually taped the conversations and the State Trooper who provided the equipment and instructions; court declined to adopt nine part traditional test for authentication and noted the ?modern approach,? i.e., ?[whether[ the proponent [of the evidence has] presented sufficient evidence to support a rational finding [that] the tape recording is authentic?

Nature of Case: Second degree sexual abuse of a minor

Electronic Data Involved: Audio tapes

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Dec 01 2009

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

HSH Nordbank AG N.Y. Branch v. Swerdlow, 2009 WL 2223476 (S.D.N.Y. July 24, 2009)

Dec 01 2009

Key Insight: Court ordered inadvertently produced documents returned where documents were protected by attorney-client privilege and the common interest doctrine, where plaintiff was sufficiently careful in its privilege review, inadvertently produced only nine documents out of 250,000, and promptly sought their return, and where the parties protective order provided that inadvertent production would not result in waiver

Nature of Case: Breach of contract

Electronic Data Involved: Privilege communications

Bellinger v. Astrue, 2009 WL 2496476 (E.D.N.Y. Aug. 14, 2009)

Dec 01 2009

Key Insight: Court declined to compel production of detailed information regarding defendant?s electronically stored information and efforts to search the same where such production would be ?extremely burdensome? and unlikely to be of significant value, especially in light of defendants prior production of information regarding the relevant information systems and searches and because plaintiff had not established prejudice as a result of alleged deficiencies in defendants production, among other reasons; footnote addressing format of production reasoned hard copy production of ESI was acceptable because hard copy was a reasonably useable format, because production in electronic format would be burdensome, and because plaintiff?s counsel was already familiar with the hard copy production such that production in electronic form would be ?redundant and wasteful?

Nature of Case: Employment discrimination

Electronic Data Involved: Information related to information systems and searches for relevant ESI

Fuller v. Interview, Inc., 2009 WL 3241542 (S.D.N.Y. Sept. 30, 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege where production was inadvertent, where reasonable steps were taken to protect privileged materials, where the volume of inadvertently produced material was very small (portions of a few pages out of 34,000 pages produced), and where defendants acted quickly to assert the privilege after discovering the inadvertent production

Nature of Case: Termination in violation of Family Medical Leave Act

Electronic Data Involved: Portions of privileged emails

Dassault Systemes, S.A. v. Childress, 2009 WL 3602084 (E.D. Mich. Oct. 27, 2009)

Dec 01 2009

Key Insight: Court granted leave to serve subpoena to procure computers and documents seized from the defendant despite finding that the items were procured through the coercive powers of the grand jury (and thus subject to stricter showing to compel their discovery) where plaintiff showed the evidence would be otherwise available through civil discovery and where the court could not conceive how such access would reveal anything about the nature, direction or scope of the grand jury?s inquiry

Nature of Case: Copyright and trademark infringement

Electronic Data Involved: Computers

Catagory:Case Summaries