Case Summaries – Page 286 – Electronic Discovery Law

Espy v. Info. Tech., 2009 WL 2912506 (D. Kan. Sept. 9, 2009)

Dec 01 2009

Key Insight: In an opinion addressing several discovery disputes, court granted plaintiff?s motion to compel and ordered defendants to produce a CD containing the contents of a secure website related to defendant?s attempt to sell the company following an in camera review of the same; rejecting defendant?s arguments that 28,000 pages of uncategorized electronic documents without bates stamps were produced as kept in the usual course of business, court ordered defendant?s to identify ?by index or otherwise? specific documents responsive to plaintiff?s request

Nature of Case: Suit seeking commission for sales made as employee of defendant

Electronic Data Involved: ESI

Transcap Assoc., Inc. v. Euler Hermes Am. Credit Indemnity Co., 2009 WL 3260014 (N.D. Ill Oct. 9, 2009)

Dec 01 2009

Key Insight: Where defendant ?produced? archived marketing materials by directing plaintiff to website commonly known as the Way Back Machine (which itself warned of missing links and image in webpages) and did not establish or allege that it maintained material on the Way Back Machine in the ordinary course of business, and where the court determined defendant had not adequately investigated the existence of responsive documents in paper form, court granted motion to compel and ordered defendant to conduct ?a thorough search? for responsive documents and to produce them in paper or electronic format within 14 days; court ordered plaintiff to pay attorneys fees and costs and imposed monetary sanctions against plaintiff for the numerous discovery violations addressed in the opinion

Nature of Case: Insurance coverage action

Electronic Data Involved: Way Back Machine

Saadi v. Maroun, 2009 WL 3736121 (M.D. Fla. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where plaintiff offered printouts of defamatory statements from website for the limited purpose of proving the statements appeared on the worldwide web on the days that plaintiff personally saw the statements and printed them from the computer, testimony of plaintiff of his personal knowledge of the content was sufficient to authenticate the documents

Nature of Case: Defamation

Electronic Data Involved: Printout of website

Paylan v. St. Mary?s Hosp. Corp., 983 A.2d 56 (Conn. App. Ct. 2009)

Dec 01 2009

Key Insight: Where trial court precluded plaintiff from presenting evidence of a court order requiring defendant to preserve the relevant hard drive but expressly allowed the presentation of evidence concerning the destruction of the hard drive and deferred ruling on the whether to give an adverse inference instruction, and where plaintiff failed to present evidence of defendant?s intentional destruction of the hard drive, a necessary element when seeking an adverse inference, court of appeals ruled trial court?s preclusion of evidence of the order was error, but that the error was harmless, and affirmed the judgment of the trial court

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive

Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480 (Fed. Cl. Aug. 28, 2009)

Dec 01 2009

Key Insight: In this long discovery opinion, court conducted waiver analysis pursuant to Fed. R. Evid. 502 of 8 documents and found that privilege had been waived as to each document for a myriad of reasons including: a finding that production was not inadvertent where the document(s) at issue had been produced (via FOIA or discovery response) on more than one occasion, defendants failure to adequately establish the measures taken to prevent the disclosure of the document(s) at issue, defendants failure to adequately object to the use of the document(s) at deposition, and defendants failure to request the return of the document(s) following discovery of their production or to take other measures to rectify disclosure

Nature of Case: Breach of contract and taking without just compensation

Electronic Data Involved: Privileged emails and hard copy

Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure

Nov 12 2009

In re Global Power Equip. Group, Inc., 418 B.R. 833 (Bankr. D. Del. 2009)

Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of the claimant and, applying the “comity analysis” as articulated by the United States Supreme Court, determined that the contested matter “should and shall be conducted under the Federal Rules and not under the Hague Evidence Convention.” Accordingly, the motion to compel was granted and claimant was ordered to comply with the contested discovery requests “in accordance with the Federal Rules.”

Defendants and General Counsel Sanctioned for Failure to Preserve Evidence

Nov 11 2009

Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009)

In April 2006, plaintiff Swofford was shot seven times, on his own property, by two deputies in pursuit of two burglary suspects. Plaintiffs brought suit against the sheriff in his official capacity and against the deputies individually. In August 2006, plaintiffs’ counsel sent the first of two letters requesting the preservation of relevant evidence. In February 2007, plaintiffs’ counsel sent a second preservation letter and a notice of claim as required by Florida statute. Defendants did not deny receipt of these letters, but evidence was nonetheless destroyed.

Despite defendants’ receipt of the letters, no litigation holds were ever issued. Rather, the letters were forwarded to six senior employees of the Seminole Country Sherriff’s Office (“SCSO”), including named defendant Sherriff Eslinger. No preservation instructions were provided to the deputies involved in the shooting.

Supreme Court of Arizona holds Metadata is Subject to Public Records Requests

Oct 30 2009

Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009)

In an en banc opinion, the Supreme Court of Arizona vacated (in part) an opinion from the Court of Appeals and held that “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.” [Emphasis added.]

Court Imposes Strict Sanctions for Loss of Video Resulting from City’s Reckless Failure to Ensure Preservation

Oct 29 2009

Peschel v. City of Missoula, 664 F. Supp. 2d 1137 (D. Mont. 2009)

In this case arising from defendant’s claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city’s failure to preserve the video of the arrest that was recorded by a camera in one of the officer’s cars. Finding that the video was lost as a result of the city’s recklessness, the court granted defendant’s motion for sanctions and “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [defendant].”

Court Denies Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”

Oct 28 2009

Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009)

In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants’ “computers and other electronic storage devices” for forensic examination. In support of the motion, plaintiff argued that defendants’ offer to produce emails in “paper form” was insufficient and that defendants were not properly preserving data for production. Noting plaintiff’s failure to make a sufficient showing in favor of such production and the parties’ failure to cooperate to reach agreement on the issues presented, the court denied plaintiff’s motion.

Catagory:Case Summaries