Case Summaries – Page 298 – Electronic Discovery Law

Arista Records, LLC v. Does 1-12, 2008 WL 4133874 (E.D. Cal. Sept. 4, 2008)

Dec 01 2008

Key Insight: Good cause existed to grant plaintiffs’ application for expedited discovery prior to Rule 26(f) conference given possibility that ISP may destroy information that could identify Doe defendants, discovery request was narrowly tailored and would substantially contribute to moving case forward, and defendants could not be identified without requested information; to protect any privacy rights or first amendment protections of Doe defendants, court set out procedure for ISP to first contact subscribers prior to releasing their information and set deadlines for any motions to quash

Nature of Case: Copyright infringement

Electronic Data Involved: Names and contact information for ISP subscribers

CBT Flint Partners, LLC v. Return Path, Inc., 2008 WL 4441920 (N.D. Ga. August 7, 2008)

Dec 01 2008

Key Insight: Where plaintiff moved to compel production of essentially every document in defendant?s possession, failed to engage in meaningful meet and confer discussions, repeatedly ?filled the record with invective? and made misrepresentations to court, and where defendant had produced in native format over 1.4 million pages of documents as result of electronic search using plaintiff?s 102 search terms in addition to numerous versions of source code and paper documents, and was in substantial compliance with discovery at time of hearing, and where court had previously imposed cost shifting by ordering production of certain documents contingent upon plaintiff bearing $300,000 of defendant?s privilege review expense, court further ruled that defendant was entitled, under Rule 37(a)(5), to an additional $86,787 representing 75 percent of its attorneys’ fees incurred in connection with the discovery dispute

Nature of Case: Patent infringement

Electronic Data Involved: Email, ESI

Anderson v. Am. Airlines, Inc., 2008 WL 4816620 (N.D. Cal. Nov. 5, 2008)

Dec 01 2008

Key Insight: Plaintiff?s motion for contempt sanctions for discovery abuse denied where defendant indicated no documents responsive to subpoena existed, where search for documents entailed ?paper files, electronic files, hard drives, archives, computers, etc.?, where search was performed in presence of defendant?s paralegal and where defendant hired a contractor to search for archived emails but still found nothing; court found plaintiff?s reliance on ?passing statement? regarding email communication at deposition ?insufficient to prove that the purported emails ever existed?

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, email

In re County of Erie, 546 F.3d 222 (2008)

Dec 01 2008

Key Insight: Petition for Mandamus granted and order to produce privileged emails vacated where appellate court found that defendants? claim of attorney-client privilege had not been waived because defendants had not claimed reliance upon privileged advice as a defense and thus had had not put the advice ?at issue?

Nature of Case: Class action challenging constitutionality of strip- search policy

Electronic Data Involved: Emails

Remedy Intelligent Staffing, Inc. v. Metro. Employment Corp. of Am., 2008 WL 5156609 (D. Mass. Dec. 5, 2008)

Dec 01 2008

Key Insight: Court declined to order preliminary injunction requiring defendants to image hard drives for production and to produce copies of all electronic files related to the action where plaintiff alleged that defendants destroyed ESI on plaintiff?s server but did not state who deleted it or how, and where plaintiff failed to show the information was not available elsewhere or that ample protection was not provided by the preservation obligations under the Federal Rules or the rules of the American Arbitration Association

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, hard drives

Hubbard v. Potter, 247 F.R.D. 27 (D.D.C. 2008)

Dec 01 2008

Key Insight: Court denied plaintiffs? request for additional round of pre-certification discovery on defendant?s process of preserving, locating and producing responsive documents, since some electronic documents had been produced and only basis for motion was general ?paucity? of defendant’s document production and ?theoretical possibility? that other electronic documents might exist

Nature of Case: Putative class action against Postmaster General by deaf postal employees

Electronic Data Involved: Unspecified electronic documents

Leist v. GHG Corp., 2008 WL 183330 (S.D. Tex. Jan. 18, 2008)

Dec 01 2008

Key Insight: Where plaintiff alleged that former supervisor wrote memos concerning plaintiff?s alleged deficiencies after plaintiff complained about co-employee?s racist comments, that she never saw the memos and did not sign them as was normal practice with disciplinary memos, and defendant had not preserved hard drive of supervisor?s computer, court did not grant adverse inference as to contents of hard drive but found a material question of fact as to plaintiff?s retaliation claim, and denied defendant’s motion for summary judgment on retaliation claim

Nature of Case: Wrongful termination and retaliation claims

Electronic Data Involved: Hard drive, metadata

United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)

Dec 01 2008

Key Insight: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms

Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests

Electronic Data Involved: Hard copy and electronic files

U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)

Dec 01 2008

Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner

Nature of Case: Breach of contract, account stated, open account, and unjust enrichment

Electronic Data Involved: Computer hard drives of plaintiff’s employees

St. Cyr v. Flying J, Inc., 2008 WL 2097611 (M.D. Fla. May 16, 2008)

Dec 01 2008

Key Insight: Court concluded that FRCP 26(5)(B) applied not only to ESI but to paper documents as well, and set out lengthy quote from advisory committee’s note; court denied plaintiff’s motion in limine to exclude evidence of plaintiff’s communications with expert, finding that plaintiff had waived work product protection by voluntarily producing the documents at expert’s deposition

Nature of Case: Negligence and strict liability

Electronic Data Involved: Letter and email produced in hard copy form

Catagory:Case Summaries