Case Summaries – Page 285 – Electronic Discovery Law

Palisades Collection, LLC v. Kedik, 890 N.Y.S. 2d 230, 67 A.D. 3d 1329 (N.Y. App. Div. 2009)

Dec 01 2009

Key Insight: Appellate court affirmed lower court?s finding that plaintiff failed to lay a proper foundation for the admission of a printed electronic spreadsheet where, although plaintiff?s agent averred the spreadsheet was kept in the usual course of business, the agent failed to establish his familiarity with plaintiff?s business practices and ?when, how, or by whom? the spreadsheet was made and where the agent failed to establish that the printed spreadsheet was a true and accurate representation of the electronic record

Nature of Case: Breach of contract

Electronic Data Involved: Printed electronic spreadsheet

Bayview Loan Servicing, LLC v. Boland, 2009 WL 2424448 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where plaintiff responded to discovery by producing large quantities of documents on CD (which had been indexed and arranged by topic and subtopic) and directing defendants that the documents sought were contained thereon, court found the response was ?sufficient? as to the ?general requests? but that ?where Defendant asked for more specific information, Plaintiff is required to identify which document on the CDs in which loan files are responsive in order to comply with Rule 33(d)(1)? and ordered plaintiff to provide ?more complete and specific responses? to certain Interrogatories and Requests for Production

Nature of Case: Claims arising from alleged default on loan repayment

Electronic Data Involved: ESI

In re Rail Freight Surcharge Antitrust Litig., 2009 WL 3443563 (D.D.C. Oct. 23, 2009)

Dec 01 2009

Key Insight: Where defendants argued against treating in house counsel as ?normal custodians? for purposes of collection and production because the burden of reviewing potentially responsive information for privilege was high and the likely benefit of any material produced minimal, but where the parties had already agreed on a ?filter? which would automatically ?log? any ESI hit by certain privileged terms, court ordered ESI production to go forward but delayed review and production of hard copy until the extent of the burden could be determined and indicated hope that ?we will be able to devise a method of reviewing the hard copies for privilege without the necessity of a log? noting that ?I have all too often found the traditional privilege log useless.?

Nature of Case: Antitrust litigation

Electronic Data Involved: ESI

1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., 2009 WL 1605118 (S.D. Ind. June 5, 2009)

Dec 01 2009

Key Insight: Court ordered terminating sanctions against defendant and for defendant and its defense firm to pay plaintiff?s attorney?s fees where client made repeated misrepresentations regarding the use of certain chemicals at issue and failed to disclose relevant evidence about the same and where counsel failed to provide adequate guidance regarding the need to locate and produce responsive materials and allowed defendant to make repeated misrepresentations despite significant evidence that those representations were untrue

Nature of Case: Claims of property contamination

Armisted v. State Farm Mutual Ins., 2009 WL 81103 (E.D. Mich. Jan. 9, 2009)

Dec 01 2009

Key Insight: Where defendant produced only portions of a requested manual in an alleged effort to save expenses despite its ability to reproduce the whole manual ?almost instantaneously? by computer to compact disc, and where defendant failed to produce other easily accessible and relevant documents, court declined to enter default judgment because plaintiffs failed to demonstrate sufficient prejudice but ordered monetary sanctions in an amount to be determined

Electronic Data Involved: ESI

Hale v. Coors Distrib. Co., 2009 WL 1600678 (D. Colo. June 5, 2009)

Dec 01 2009

Key Insight: Finding that plaintiff?s counsel?s understanding of defendant?s computer capabilities was ?neither thorough nor accurate? and that the lack of understanding resulted in an inability to adequately articulate the nature of the information sought, and finding that the lack of understanding was attributable to both parties, court considered six part test to determine whether discovery should be re-opened and then granted plaintiff?s request for additional discovery, limited by the court?s instructions

Electronic Data Involved: Database information

Cenveo Corp. v. S. Graphic Systs., 2009 WL 4042898 (D. Minn. Nov. 18, 2009)

Dec 01 2009

Key Insight: Where plaintiff produced ESI in .pdf format despite defendants? request for production in native format and later argued the term ?native format? was undefined, court found the term ?native format? was unambiguous and granted defendants? motion to compel the production (and re-production as was necessary) of ESI in native format

Electronic Data Involved: ESI

S.E.C. v. Bank of Amer. Corp., 2009 WL 3297493 (S.D.N.Y. Oct. 14, 2009)

Dec 01 2009

Key Insight: Court approved stipulated protective order allowing defendant to waive privilege and work product protections as to certain categories of documents without also waving ?such privilege and protection regarding other information that may be of interest in related private lawsuits?

Electronic Data Involved: ESI, hard copy

Swendra v. Comm?r Pub. Safety, 2009 WL 660770 (Minn. Ct. App. Jan. 13, 2009)(Unpublished)

Dec 01 2009

Key Insight: Court did not abuse discretion in denying defendant?s motion for discovery of Intoxilyzer 500 EN source code where defendant stipulated that test was administered properly and appeared to be in working order and where production would be unduly burdensome absent a showing of relevance beyond speculation

Nature of Case: Driver’s license revocation

Electronic Data Involved: Source code

Casual Living Worldwide v. Lane Furniture Idus. Inc., 2009 WL 37162 (W.D. Ky. Jan. 6, 2009)

Dec 01 2009

Key Insight: Court ordered defendant to produce email sent to a foreign supplier despite objection that email was privileged where foreign supplier did not have the required commonality of interest to preserve the privilege i.e., ?a shared legal interest? but rather, only a possible ?common business interest?namely, that the Defendant be allowed to continue to produce the alleged infringing furniture??

Nature of Case: Patent infringement

Electronic Data Involved: Email

Catagory:Case Summaries