Case Summaries – Page 299 – Electronic Discovery Law

Aecon Buildings Inc. v. Zurich N. Am., 253 F.R.D. 655 (W.D. Wash. 2008)

Dec 01 2008

Key Insight: Court imposed significant monetary sanction upon finding that defendant violated both the letter and spirit of discovery rules where defendant deliberately concealed existence of electronically stored information by making repeated misrepresentations regarding completeness of production and the existence of additional information and for defendant?s failure to produce the necessary privilege log

Nature of Case: Bad faith failure to defend or indemnify

Electronic Data Involved: Notes made in electronically stored case file

Powell v. Sharpsburg, 2008 WL 5422577 (E.D.N.C. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where defendant willfully destroyed relevant work orders pursuant to its document retention policy but where defendant should have been aware of the relevance of the documents and the resulting duty to preserve, court ordered adverse inference in favor of plaintiff and prohibited defendants from introducing secondary evidence of contents of spoliated documents

Nature of Case: Title VII action for discriminatory discipline based on race

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D. Fla. Dec. 17, 2008)

Dec 01 2008

Key Insight: Where plaintiff produced materials relied on by its expert on DVD in .sav format but defendants alleged it was inaccessible, court held that .sav format was a ?reasonably accessible format? and declined to compel re-production; court?s reasoning included consideration that .sav was format in which expert originally considered the information and evidence that .sav files could be opened by standard ?statistical computer packages?

Electronic Data Involved: ESI, “.sav” data

Howard v. Rustin, 2008 WL 2008937 (W.D. Pa. May 2, 2008)

Dec 01 2008

Key Insight: Court sustained objection to request seeking “[a]ny and all electronically stored information, documents, reports, logs and/or memorandums contained in any and all of the electronic databases and/or computer systems of Allegheny County Jail, Allegheny Correctional Health Services, Inc., Bruce Dixon, and Dana Phillips” as overbroad, unreasonably cumulative, and unduly burdensome, since the request imposed no limits (time or otherwise) on ESI requested; court allowed plaintiffs to revise request to include reasonable limitations and serve it by certain date

Nature of Case: Wrongful death

Electronic Data Involved: Unspecified ESI

Beem v. County of Madison, 2008 WL 2561110 (S.D. Ill. June 25, 2008)

Dec 01 2008

Key Insight: Noting that case involved the operation of a government office, and images were contained within a government computer where there could be no expectation of privacy (particularly not when it is alleged that images were already seen by plaintiff and others), and pornographic images were clearly relevant if not ?res gestae,? court overruled County?s objections and ordered County to (1) provide plaintiff with copies of all of pornographic images from criminal investigation that were in its custody and control; and (2) allow plaintiff’s counsel and a computer forensics specialist access to the hard drive of supervisor?s work computer, so that all responsive images could be copied in electronic format for plaintiff’s counsel

Nature of Case: Plaintiff alleged she was required to work in a sexually hostile environment, and specifically that she was exposed to extreme, graphic and debasing computer/internet pornography contained in her supervisor’s office computer

Electronic Data Involved: Pornographic images stored on supervisor’s office computer

Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)

Dec 01 2008

Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information

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

Electronic Data Involved: Laptop hard drive, USB Thumb-Drive

Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008)

Dec 01 2008

Key Insight: Remanding case for new trial on other grounds, appellate court noted that trial court may have committed an error of law, in analyzing plaintiff?s request for adverse inference instruction as sanction for government?s failure to preserve email, by equating the intentional conduct necessary for such an instruction with bad faith; appellate court would leave it to trial court to consider request for adverse inference instruction on remand, but observed that (even absent a court order) the duty to preserve material evidence arises not only during litigation but also extends to that period before litigation when party reasonably should know that evidence may be relevant to anticipated litigation

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Email

Cartwright v. Viking Indus., Inc., 2008 WL 4283614 (E.D. Cal. Sept. 11, 2008)

Dec 01 2008

Key Insight: Where parties agreed to production of database materials but failed to reach mutual understanding regarding need for privilege log, court held that failure to produce log due to misunderstanding did not waive privilege; court rejected argument that providing log would be unduly burdensome and expensive and ordered production of privilege log within two weeks

Nature of Case: Class action product liability litigation

Electronic Data Involved: Database

Air-Ride, Inc. v. DHL Express (USA), Inc., 2008 WL 4766832 (Ohio Ct. App. Nov. 3, 2008)

Dec 01 2008

Key Insight: Appellate court upheld waiver of privilege despite inadvertent production where defendant previously testified as to the subject of the email in affidavit, where the email was marked ?confidential,? indicating it had been reviewed by an attorney prior to production, where defendant learned of the disclosure from plaintiff and waited 2 weeks to seek judicial intervention, where the entirety of the email was produced rather than a part, and where its contents were ?at the heart of the matter? such that fairness mandated a finding of waiver

Nature of Case: Breach of contract

Electronic Data Involved: Email

Gateway Senior Hous., Ltd. v. MMA Fin., Inc., 2008 WL 5142152 (E.D. Tex. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants? proffered explanations for the destruction of those hard drives was contradicted and ?lame? in light of defendants? knowledge of their relevance and its duty to preserve

Nature of Case: Breach of contract

Electronic Data Involved: ESI, emails, hard drives

Catagory:Case Summaries