Case Summaries – Page 300 – Electronic Discovery Law

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 4753358 (S.D. Fla. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendant produced electronic files in ?MAX format? with free ?Paperport? software to assist in its review but where plaintiff then expressed preference for hard copy documents and belief that electronic documents would cost triple the amount to review, court denied plaintiff?s motion to compel holding that defendants? production of files as kept in the usual course of business was sufficient; court also ruled that where plaintiff?s first request for documents did not specify production in electronic form, defendants need not reproduce hard copy documents electronically

Nature of Case: Patent infringement

Electronic Data Involved: ESI

U.S. v. Treacy, 2008 WL 5062722 (S.D.N.Y. Nov. 24, 2008)

Dec 01 2008

Key Insight: Court declined to compel government to undertake ?seemingly redundant and unquestionably burdensome? search of 15 disks in witness?s possession where defendant failed to show that documents on disk materially varied from documents already searched and reviewed by government and where government had produced responsive documents discovered in that search pursuant to Rule 16 obligations

Nature of Case: Securities fraud and conspiracy

Electronic Data Involved: Computer disks

Cumberland Truck Equip. Co. v. Detroit Diesel Corp., 2008 WL 5111894 (E.D. Mich. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiffs admitted to deletion of electronic data after failing to disable auto-delete function but where deletion was not intentional and where defendants failed to show more than a suspicion of prejudice, court declined to issue order for plaintiffs to show cause why sanctions should not be imposed; court issued warning to plaintiffs that any future loss of data, whether negligent or otherwise, was ?not acceptable? and ordered measures taken against further deletion

Nature of Case: Price fixing

Electronic Data Involved: ESI, email

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 71678 (M.D. Fla. Jan. 8, 2009)

Dec 01 2008

Key Insight: Where plaintiff produced electronically stored information on an expedited basis pursuant to court order and did not perform a privilege review of the production, but where substantial steps were taken to protect privilege during the collection phase of discovery and where those efforts were thwarted by technical mistakes and human error, court granted plaintiff?s motion for a protective order finding the privilege was not waived by the expedited production and ordering defendants to return or destroy any privilege encountered ?in the ordinary course of trial preparation?; court acknowledged outstanding issue of fact that could affect waiver as to individual documents and indicated its willingness to resolve such questions in response to an appropriate motion to do so

Nature of Case: Insurance coverage and related claims

Electronic Data Involved: Hard drive, ESI

Overlap Inc. v. Alliance Bernstein Invs., Inc., 2008 WL 5780994 (W.D. Mo. Dec. 29, 2008)

Dec 01 2008

Key Insight: Court found defendant failed to establish burden of proving ESI was not reasonably accessible where testimony established the relevant computer system could b searched in-house with ?minimal? time spent and ordered defendant to search for and produce the information requested and to bear the associated costs; court ordered search of backup tapes without deciding the issue of reasonable accessibility where plaintiff established ?good cause? for why the tapes should be searched and ordered defendants to search for and produce the information requested and to bear the associated costs

Nature of Case: Breach of contract/warranty

Electronic Data Involved: ESI

In re Hawaiian Airlines, Inc., 2008 WL 185649 (Bankr. D. Haw. Jan. 22, 2008)

Dec 01 2008

Key Insight: Although expert fees and expenses were not taxable as costs under 28 U.S.C. Sec. 1920, court ruled that, since most if not all of the work performed by Hawaiian Airlines’ computer forensics expert was directly attributable to Mesa’s spoliation of evidence (which was subject of October 30, 2007 decision imposing certain evidentiary sanctions against Mesa), the expert’s fees and expenses of approximately $80,000 would be awarded as an additional spoliation sanction

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

Peacock v. Merrill, 2008 WL 509636 (S.D. Ala. Feb. 22, 2008)

Dec 01 2008

Key Insight: Where defendants did not have any knowledge of a particular computer disk containing relevant evidence, much less an exact copy of that disk, when they first deposed plaintiff, and plaintiff’s prior sworn statements about the disk were conflicting, court granted defendants? motion for leave to depose plaintiff a second time on the limited issue of her knowledge of the existence of the disk and its contents

Nature of Case: Conversion, interference with business relationships, breach of fiduciary duties and conspiracy claims

Electronic Data Involved: Metadata; CD-ROM containing data retrieved from inoperable computer

Baird v. Dept. of the Army, 517 F.3d 1345 (Fed. Cir. 2008)

Dec 01 2008

Key Insight: Finding that administrative judge abused his discretion in refusing to compel production of relevant email, and given defendant?s ?lax attitude? towards compliance with plaintiff?s discovery requests, court vacated final decision of Board and remanded case to Board, to be remanded to administrative law judge with directions to order defendant to promptly produce all relevant emails and to assure that all relevant personnel either had already, or will promptly, produce all relevant emails; if such production of email resulted in further evidence to support Baird’s theory, administrative judge to afford Baird another hearing

Nature of Case: Civilian employee at Army hospital sought review of Merit Systems Protection Board final decision sustaining her termination for having failed random drug test

Electronic Data Involved: Email

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

Yu v. New York City Hous. Dev. Corp., 2008 WL 2152138 (S.D.N.Y. May 20, 2008)

Dec 01 2008

Key Insight: Ruling on various discovery matters, court noted plaintiff?s belated complaint that documents were not produced in ESI format and defendants? offer to convert their document production into OCR files, ?a more searchable form than the PDF format it originally provided,? and ordered plaintiff to advise defense counsel within three days if he desired such conversion; court further noted that plaintiff?s request for email was overbroad and that he had failed to justify requiring defendants to undertake a large-scale search of their backup tapes; court further ordered plaintiff to return employer-issued laptop computer to defendant

Nature of Case: Employment litigation

Electronic Data Involved: Email, laptop

Catagory:Case Summaries