Case Summaries – Page 298 – Electronic Discovery Law

Dynamic Sports Nutrition, Inc. v. Roberts, 2008 WL 2775007 (S.D. Tex. July 14, 2008)

Dec 01 2008

Key Insight: Finding substantial likelihood that plaintiff would prevail on its claims, that plaintiff was suffering ?immediate, irreparable, imminent harm? for which there was no adequate remedy at law, that defendants had posted confidential information about plaintiff?s products on publicly accessible blogs and websites, that individual defendant had misappropriated laptop belonging to plaintiff after his termination from plaintiff and had failed to comply with aspects of the court’s Temporary Restraining Order, court entered preliminary injunction forbidding defendants from, among other things, deleting relevant ESI and requiring defendants to return laptop to plaintiff?s counsel and to preserve all evidence of any disclosure or dissemination of plaintiff?s confidential information

Nature of Case: Misappropriation of trade secrets, breach of fiduciary duty, conversion and and violations of Computer Fraud and Abuse Act

Electronic Data Involved: Laptop computer and confidential business information

E.E.O.C. v. Beauty Enters., Inc., 2008 WL 3359252 (D. Conn. Aug. 8, 2008)

Dec 01 2008

Key Insight: Where plaintiffs argued that several BEI supervisors had testified they had not been instructed to preserve documents related to case, court agreed that defense counsel?s litigation hold letter was privileged and ordered BEI to disclose date on which letter was sent and names of recipients

Nature of Case: Employment discrimination

Electronic Data Involved: Letter from BEI’s counsel to BEI supervisors advising them to implement a litigation hold

Nucor Corp. v. Bell, 2008 WL 4442571 (D.S.C. Jan. 11, 2008)

Dec 01 2008

Key Insight: Where parties submitted competing expert testimony in support of and in opposition to plaintiff’s motion for spoliation sanctions, court also considered and ruled upon parties’ cross-motions to exclude their opponent’s computer forensics expert under FRE 702 and Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993)

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop and USB flash-drive device

U.S. v. Soliman, 2008 WL 4490623 (W.D.N.Y. Sept. 30, 2008)

Dec 01 2008

Key Insight: Court ordered government to re-produce CD-roms containing 60,000 documents ?in some accessible manner that is readily understood by the parties? where government?s previous production provided defendant with no index or way to locate a particular document or cross reference between disks and where despite no preference within the rules between inspection and copying, the government had undertaken to copy the materials for plaintiff

Nature of Case: Criminal prosecution for healthcare fraud

Electronic Data Involved: Over 60,000 documents produced on CD

In Re U-Haul Class Action Tammy Koceinda, 2008 WL 5071996 (D. Conn. Nov. 21, 2008)

Dec 01 2008

Key Insight: Court declined to compel production of emails sent between plaintiff, her attorney, and her husband, where husband was an attorney, although not the attorney of record, and where he acted as plaintiff?s ?personal attorney? and provided legal advice regarding ongoing litigation

Nature of Case: Class action breach of contract

Electronic Data Involved: Email

Koch Foods of Ala., LLC v. Gen. Elec. Capital Corp., 2008 WL 5264672 (11th Cir. Dec. 18, 2008)

Dec 01 2008

Key Insight: Court found no waiver of attorney-client privilege from inadvertent production where the privileged email was found tucked into a 37-page lease agreement contained in a 3,758 page production, where the email was included in the privilege log, and where plaintiff immediately asserted privilege upon learning of its disclosure; court acknowledged Alabama?s lack of controlling authority, but applied a totality-of-the-circumstances test reasoning that ?it would likely be adopted by the Alabama Supreme Court if confronted with the issue.?

Nature of Case: Conversion

Electronic Data Involved: Email

Orbit One Commc?ns, Inc. v. Numerex Corp., 2008 WL 4778133 (S.D.N.Y. Oct. 31, 2008)

Dec 01 2008

Key Insight: Where defendant/successor corporation acquired computer and server utilized by plaintiff/predecessor corporation in pre-acquisition operation of predecessor company but plaintiff asserted privilege as to certain pre-acquisition documents in response to subpoena from defendant, court ruled documents were protected by privilege, despite presence on acquired hardware, where plaintiff removed allegedly privileged and personal documents prior to defendant?s access and control of hardware and thus had a reasonable expectation of privacy; court ordered production of non-privileged materials and categorical privilege log and declined to sanction plaintiff for removal of documents from acquired hardware where plaintiff acted to preserve the documents and agreed to produce non-privileged material

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355 (2008)

Dec 01 2008

Key Insight: Court denied (in part) motion for writ of mandamus to vacate trial court?s order compelling production of ?all documents regarding the relationship between Nationwide and its counsel? where Nationwide failed to show that the information was ?patently irrelevant,? as required, and where the court opined that the information was accessible through its counsel and was thus unpersuaded that production would be arduous; court granted motion (in part) and directed trial court to vacate order compelling production of all electronic communications with counsel where court found that communications occurring after denial of coverage were within period in which litigation was anticipated and were therefore privileged

Nature of Case: Breach of insurance contract

Electronic Data Involved: Email, ESI regarding relationship with counsel

Option One Mortg. Corp. v. Universal Mortg. Group, Inc., 2008 WL 6928158 (D.S.C. Aug. 27, 2008)

Dec 01 2008

Key Insight: Despite indicating concern regarding the cross-claim plaintiff?s deletion of employees? emails after firing them for inappropriate accounting, the court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to identify evidence indicating that the emails would have contained relevant evidence and where fact discovery had been closed for more than a year and plaintiff ?appear[ed] to have presented what it view[ed] as a quite complete theory of the case using the voluminous evidence? available to it

Electronic Data Involved: Emails of fired employees

Atmel Corp. v. Authentec Inc., 2008 WL 276393 (N.D. Cal. Jan. 31, 2008)

Dec 01 2008

Key Insight: Where plaintiff?s Rule 30(b)(6) designee testified that he did not know whether files of CEO or nine key players had been searched for responsive documents, defendant demonstrated a ?serious question? as to the adequacy of plaintiff?s search and court ordered plaintiff to search email and computers of plaintiff and nine key players and submit declaration(s) from most knowledgeable person(s) detailing the searches performed

Nature of Case: Patent litigation

Electronic Data Involved: Email

Catagory:Case Summaries