Catagory:Case Summaries

Clark v. State, 915 N.E.2d 126 (2009)

Defendant Ian J. Clark was found guilty of murdering a two year old girl left in his care and was sentenced to life in prison without parole.  On appeal, Clark argued that the trial court improperly admitted evidence from his MySpace account in violation of Ind. R. Evid. 404(b).  Taking up the “novel question” of the propriety of admitting such evidence, the Supreme Court of Indiana ruled that the trial court did not err in admitting the evidence, particularly where Clark’s own testimony made his character a “central issue” of his defense.  The verdict and sentence were therefore affirmed.

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Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009)

During the course of discovery in this copyright infringement case, several disputes arose related to the burdensome nature of the parties’ respective requests for production.  The court initially “urged the parties” to work cooperatively to develop agreed search terms to be utilized by MP3tunes in its search for responsive electronically stored information (“ESI”).  After an initial failure to agree (and MP3tunes unilateral decision to search for ESI using only one search term), the court again directed counsel to cooperate to agree on search terms for MP3tunes use.  Again, the parties failed to reach agreement and sought intervention by the court on a number of issues.

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Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Despite finding that “Defendants have unquestionably breached a duty to preserve emails in this case,” the court denied plaintiff’s motion for an adverse inference instruction where “Plaintiff ultimately failed to demonstrate that any destroyed emails would have been favorable to her position.”

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Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009)

In this case, the court overruled the determination of the special master and held that defendant had no reasonable expectation of privacy as to emails transmitted through plaintiff’s server and thus, no attorney-client privilege as to those communications.

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U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009)

Defendant moved to compel the production of 214 inadvertently produced documents.  Plaintiff objected, arguing that the parties’ discovery agreement precluded the waiver of privilege as to inadvertently produced documents.  Noting courts’ general disapproval of “blanket” disclosure provisions and finding that the parties’ agreement did not in fact preclude waiver in all situations, the court analyzed the question of waiver pursuant to FRE 502.  The court identified three categories of inadvertently produced documents based upon the timing of the notice of their inadvertent production to the plaintiff.  The court found privilege was not waived as to the first category of documents (those brought to plaintiff’s attention the earliest).  However, noting that plaintiff was on notice of the deficiencies of his process as a result of the first notification of inadvertent production, and that despite such notice plaintiff failed to “re-assess” its document production, the court found the privilege had been waived as to the remaining categories.

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Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009)

Plaintiff Southeastern Mechanical Services, Inc. (“SMS”) moved for spoliation sanctions alleging that defendants, including individual defendants Smith, Sherouse and Brody, spoliated data by deleting it from their BlackBerries and laptops.  Defendants denied the allegations and argued that no evidence was destroyed because all of the data on the individual defendants’ laptops and BlackBerries was stored on servers.  Further, defendants argued that hard copies of the relevant emails were produced to SMS and it was therefore irrelevant whether any information was deleted.  The allegations regarding the laptops were eventually resolved by corporate defendant Thermal Engineering Construction Services, Inc.’s, (“TEI”), explanation that the laptops were configured so that the individual defendants’ emails would reside on the server.  As to the BlackBerries, however, the court found the individual defendants had deleted the data in bad faith and ordered an adverse inference to be provided to the jury at trial.

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In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009)

In this mandamus proceeding, the Supreme Court of Texas found that the trial court abused its discretion by ordering four of defendant’s employees to turn over their computer hard drives for forensic examination.

In 2007, after adding Weekley Homes, L.P. (“Weekley”) to an already pending breach of contract suit, plaintiff HFG Enclave Land Interests, Ltd. (“HFG”) served requests for production, including requests for “a broad variety of emails.”  Weekley produced thirty-one responsive emails.  Unconvinced that more correspondence did not exist, HFG filed a motion to compel additional searching.  At hearing on the issue, Weekley explained that the employees’ inboxes were limited in size and, when full, had to be emptied by manual deletion of the messages therein.  Accordingly, Weekley’s employees were “force[d]” to clear out their inboxes regularly.  Emails would be saved only if backed up by an employee to his or her hard drive.  The deleted emails were saved on backup tapes for thirty days.  The trial court denied HFG’s motion.

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Green v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009)

Upon one of the defendant’s revelation that she had lost all original versions of electronic files when she transferred those files to CD and then reinstalled her operating system, plaintiff filed a motion for sanctions.  Finding that the defendant and counsel violated their duty to preserve evidence, the court authorized additional discovery and awarded plaintiff his costs, including attorney’s fees, to be paid by the defendant and her counsel.

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Coburn Group, LLC v. Whitecap Advisors, LLC, 640 F. Supp. 2d 1032 (N.D. Ill. 2009)

In this case, defendant, Whitecap Advisors LLC (“Whitecap”), sought to compel the return of one privileged email and to strike deposition testimony regarding the same.  Plaintiff, Coburn Group, LLC (“Coburn”), resisted returning the email arguing that it was not protected work product, that privilege was waived by production, and that Coburn was “entitled” to the email because it revealed that Whitecap had mislead the court.  Finding that the email was protected as work product and that no waiver occurred, the court granted Whitecap’s motion.

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Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009)

In this case, plaintiff Bray & Gillespie Management, LLC (“B&G”) sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004.  Defendant, Lexington Insurance Company (“Lexington”), refused payment for several reasons, including its belief that the damages alleged were caused by two prior hurricanes and that the hotel at issue was not open at the relevant time.  In this opinion, one of several addressing discovery issues in this ongoing litigation, the court addressed Lexington’s motion for sanctions following numerous discovery violations on the part of B&G and its counsel.  The alleged violations revolved around the untimely production of “room folios” – evidence which would have shown who, if anyone, had stayed at the hotel following Hurricane Jeanne, and thus, the extent of the business interruption losses sustained.  Finding in favor of Lexington, the court prohibited B&G from presenting evidence in support of their claim for business interruption losses, struck the portions of their expert’s report addressing that claim, and ordered B&G and counsel jointly and severally liable for Lexington’s reasonable expenses.

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