Case Summaries – Page 286 – Electronic Discovery Law

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

Hope for Families & Cmty. Servs., Inc. v. Warren, 2009 WL 1066525 (M.D. Ala. Apr. 21, 2009)

Dec 01 2009

Key Insight: Court found emails withheld by non-party independent contractor were protected by attorney-client privilege (and work product in some cases) where independent contractor acted as representative of plaintiff for purpose of securing bingo license from the county and was authorized to communicate with counsel on plaintiff?s behalf, among other things, and where the subject communications satisfied the five-prong test borrowed from the ?corporate employee context? requiring that the communication was made for the purpose of securing legal advice for the corporation, at the direction of the corporation, that the subject of the communication was within the scope of the independent contractor?s duties, and that the communication was not disseminated beyond persons needing to know its contents; court found common interest doctrine applicable where non-party and plaintiff?s interests were identical pursuant to the terms of their consulting contract and the nature of their relationship

Patterson v. Goodyear Tire & Rubber Co., 2009 WL 1107740 (D. Kan. Apr. 23, 2009)

Dec 01 2009

Key Insight: Court indicated reluctance to intervene in discovery dispute regarding contents of back up tapes where parties failed to properly confer regarding electronic discovery but, where defendants offered to search back up tapes for relevant emails from two custodians on three specific dates, court ordered the search and prescribed search terms to employ; where the estimated labor to conduct the limited search of the back up tapes would not be excessive or unduly burdensome, court ordered defendant to bear cost

Electronic Data Involved: Back up tapes

Medcorp, Inc. v. Pinpoint Tech., Inc., 2009 WL 2194036 (D. Colo. July 14, 2009)

Dec 01 2009

Key Insight: Noting that a party seeking discovery from a non-party ?must satisfy a burden of proof heavier than the ordinary burden imposed by Rule 26 relating to discovery on any matter relevant to the subject matter involved in the pending action,? the special master quashed certain of plaintiff?s requests as overly broad and unduly burdensome including a request for forensic copies of a non-party?s employee work stations and server computers and a request for detailed information related to a the non-party?s technical environment, among others

Electronic Data Involved: Forensic copies

Barton Group, Inc. v. NCR Corp., 2009 WL 6509348 (S.D.N.Y. July 22, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s request to compel defendant to categorize its production and identify which documents were responsive to which requests where plaintiff and defendant previously agreed that defendant would produce all documents from certain custodians without prior review and where plaintiff therefore could not simultaneously benefit from avoiding the risk that defendant would unilaterally filter out responsive documents while at the same time seeking to have defendant ?provide the kind of classification that plaintiff would have gotten had it made a different choice?

Electronic Data Involved: ESI

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.

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