Case Summaries – Page 285 – Electronic Discovery Law

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

N.A. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 WL 4110889 (S.D. Ohio Nov. 19, 2009)

Dec 01 2009

Key Insight: Where third party sought sanctions/costs and attorney?s fees for plaintiff?s alleged violation of its obligation to avoid the imposition of undue burden or expense on a non-party following the third party?s expenditure of more than $50,000 in responding to plaintiff?s subopoena (including the cost of converting electronically stored information for review), court denied third party?s motion where plaintiff?s subpoena sought relevant documents within a reasonable time frame and where third party voluntarily complied with the subpoena without conditioning its compliance on reimbursement

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

Jneid v. Tripole Corp., 2009 WL 4882654 (Cal. Ct. App. Dec. 17, 2009)

Dec 01 2009

Key Insight: Appellate court reversed the judgment of the trial court and remanded the case for a new trial upon finding that defendant ?did not act intentionally? when if failed to produce certain documents before trial and that the evidentiary and issue sanctions imposed, including preclusion of use of certain documents, preclusion from introducing certain evidence, preclusion of certain arguments, and an adverse jury instruction, were ?more severe than necessary? where an order for defendant to pay all costs incurred by the completed trial (as suggested by defendant) was sufficient to rectify the prejudice to the plaintiff; on remand, court ordered trial court to determine the cost incurred by plaintiffs and cross-complainant in connection with trial and the costs incurred because of the late production of documents and for defendant to pay such costs

Nature of Case: Breach of employment contracts

Electronic Data Involved: Computer embedded information

Kandel v. Brother Int?l Corp., 2009 WL 5454888 (C.D. Cal. Dec. 15, 2009)

Dec 01 2009

Key Insight: Where defendants presented evidence that 110 privileged documents were produced despite extensive preventative measures, including key word searching and manual review, and where defense counsel took immediate action to identify all privileged materials that had been produced and to request plaintiff return, sequester, or destroy the documents pursuant to the parties? clawback agreement, court found that ?defendants ha[d] shown their production?was inadvertent within the meaning of?the protective order? and denied plaintiff?s motion for an order declaring 28 documents produced by defendants to be not privileged

Nature of Case: Class action

Electronic Data Involved: Privileged communications

United States v. Haymond, 2009 WL 2835398 (D. Okla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Where law requires denial of a request to copy or reproduce child pornography as long as the material is made ?reasonably available? to defendant and where defendant?s expert claimed an inability to locate the alleged illegal images on the forensic copy of the hard drive to which he was provided access, court indicated reticence to order the production of ?file data? to assist in the location of relevant images on the drive, but ordered defendant?s expert to instead coordinate access to the previously provided copy and for the government to assist his efforts by providing ?software keys? in there possession ? if effort failed, court indicated willingness to consider ordering production of the requested ?sector and file? information to assist defendant?s expert?s examination

Nature of Case: Child pornography

Electronic Data Involved: Images on hard drive

United States v. Hatfield, 2009 WL 3806300 (E.D.N.Y. Nov. 13, 2009)

Dec 01 2009

Key Insight: Addressing a number of attorney-client privilege and work product issues, the court considered whether documents stored on defendant?s company?s computer remained privileged and, noting the case-by-case nature of the assessment, considered five factors, including whether the company maintained a policy banning personal use, whether the company monitored employees? computer use or email, and how the company interpreted its own policy, and determined that defendant had not waived privilege as to documents stored on his own hard drive or that of a person with whom he maintained a joint defense agreement

Nature of Case: Criminal charges arising from alleged fraudulent schemes by CEO to defraud shareholders

Electronic Data Involved: Privileged emails stored on company computer

Catagory:Case Summaries