Case Summaries – Page 298 – Electronic Discovery Law

Jackson v. AFSCME Local 196, 2008 WL 1848901 (D. Conn. Apr. 25, 2008)

Dec 01 2008

Key Insight: Where nonparty stated that in-depth electronic search would need to be conducted in order to produce responsive documents, thus resulting in substantial cost to nonparty, court ordered nonparty to provide plaintiff with estimate of cost and explanation of fees, with copy to court, before embarking on search so plaintiff could decide whether she wished nonparty to proceed; court further ruled that plaintiff must pay nonparty’s compilation fees before delivery of documents to plaintiff

Nature of Case: Union member alleged that union breached its duty of fair representation

Electronic Data Involved: Unspecified ESI

Kallas v. Carnival Corp., 2008 WL 2222152 (S.D. Fla. May 27, 2008)

Dec 01 2008

Key Insight: Where plaintiff supported class certification motion with affidavits prepared by paralegals who conducted interviews with potential class members, court found that such affirmative use of work product opened door to defendant’s attempt to verify accuracy of investigation, to discover flaws, and to obtain if possible information that could impeach paralegals’ testimony; court ordered plaintiff to produce memo to file itemizing questions to be propounded to interviewees, completed form questionnaires with handwritten notations used in survey, and memoranda or handwritten notations generated by affiants during course of survey or thereafter to memorialize factual information obtained; database itself retained work product protection and plaintiff was not required to produce entire printout of database beyond those portions that plaintiffs intended to rely upon and had been produced

Nature of Case: Class action brought by passengers who had suffered symptoms associated with a spread of Norovirus

Electronic Data Involved: Epi Info database, questionnaires and underlying relevant data

Huang v. Gateway Hotel Holdings, 2008 WL 2486030 (E.D. Mo. June 18, 2008)

Dec 01 2008

Key Insight: Court ruled that plaintiffs were not required to produce for forensic inspection their ?desktop computers, cell phones, e-mail machines, laptop computers, mobile phones, ESI storage media, handheld computers and personal digital assistants,? but ordered plaintiffs determine which plaintiffs owned such devices and to produce a list of names and equipment to defendant within 20 days, and defendant would be allowed to re-file the discovery request with a showing of need; court further ruled that defendant need not produce pay and time records in an accessible electronic format but gave plaintiffs leave to re-file motion upon a showing that defendant had not supplied all available pay and time records

Nature of Case: FLSA claims, retaliation

Electronic Data Involved: Computers, cell phones and ESI storage devices used by plaintiffs

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

Ajaxo Inc. v. Bank of Am. Tech. and Operations, Inc., 2008 WL 5101451 (E.D. Cal. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to produce requested expert information in searchable format, pursuant to court order, until after defendants filed a motion for sanctions, but where plaintiffs failures were not willful and where prejudice to defendants was minimal, court ordered plaintiff to bear costs of defendants? motion to compel but declined to strike plaintiffs? expert or impose other severe sanctions

Nature of Case: Patent lawsuit

Electronic Data Involved: Expert’s report in searchable format

Fox v. Riverdeep, Inc., 2008 WL 5244297 (E.D. Mich. Dec. 16, 2008)

Dec 01 2008

Key Insight: Where defendant breached its duty to preserve evidence by taking ?no steps whatsoever to preserve emails or documents? following receipt of a cease and desist letter, court ordered adverse inference instruction that missing documents were unfavorable to defendants but declined to impose requested sanction of default judgment absent a showing of bad faith

Nature of Case: Copyright infringement, breach of contract

Electronic Data Involved: Email

Thermodyne Corp. v. 3M Co., 593 F. Supp. 2d 972 (N.D. Ohio 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion in limine for adverse inference for alleged spoliation, despite evidence that files were deleted, where plaintiff offered only conjecture regarding the relevance of the allegedly spoliated documents, where defendant had the means to recover the allegedly spoliated contents of the files and did not, and where defendant failed to show plaintiff acted deliberately with the intent to deprive plaintiffs of the data

Nature of Case: Theft of trade secrets

Electronic Data Involved: Email, ESI

Catagory:Case Summaries