Case Summaries – Page 305 – Electronic Discovery Law

Washington v. State, 961 A.2d 1110 (Md. 2008)

Dec 01 2008

Key Insight: Court of Appeals reversed Special Court of Appeals and remanded case for new trial based on State?s failure to properly authenticate surveillance video where State entered video into evidence but provided no testimony as to ?the process used, the manner of the operation of the cameras, the reliability of authenticity of its images, or the chain of custody of the pictures?

Nature of Case: First degree assault and related offenses

Electronic Data Involved: Video Surveillance

Simon Property Group, Inc. v. Taubman Centers, Inc., 2008 WL 205250 (E.D. Mich. Jan. 24, 2008)

Dec 01 2008

Key Insight: Where nonparty demonstrated that a search for ESI using terms provided by party returned over 250,000 files and that it would take three employees working full time for four weeks to review files for responsiveness, and party offered to narrow scope by altering time periods, search terms, and servers, court ordered enforcement of subpoena with provision that both parties work in good faith to reduce its scope

Nature of Case: Breach of contract, RICO and other tort claims

Electronic Data Involved: ESI

Advante Int’l Corp. v. Mintel Learning Tech., 2008 WL 928332 (N.D. Cal. Apr. 4, 2008)

Dec 01 2008

Key Insight: Where court had earlier ruled that defendant could recover attorney fees and costs relating to motion to compel and forensic inspection of plaintiff?s computer servers, court denied defendant?s subsequent request for $944,902 in attorneys? fees and instead awarded $105,000 as reasonable amount of attorneys? fees incurred; court further ordered plaintiff to pay neutral computer expert only for fees directly related to forensic inspection and not for those related to defendant’s advocacy in the action

Nature of Case: Misappropriation of intellectual property

Electronic Data Involved: Computer servers

Matthews v. Baumhaft, 2008 WL 2224126 (E.D. Mich. May 29, 2008)

Dec 01 2008

Key Insight: District judge upheld as neither clearly erroneous nor contrary to law magistrate judge?s order for forensic imaging of defendants’ computers, where defendants had refused to provide documents plaintiff requested, providing only “sample” appraisals, and where relevant appraisals and software used to generate appraisals resided in computer and were relevant to parties’ claims and defenses

Nature of Case: Fraud, RICO and breach of fiduciary duty claims

Electronic Data Involved: Appraisals and software used to generate appraisals

Permasteelisa CS Corp. v. Airolite Co., LLC, 2008 WL 2491747 (S.D. Ohio June 18, 2008)

Dec 01 2008

Key Insight: Court denied motion for adverse inference brought by plaintiff under FRCP 51 one week before bench trial and based on destruction and replacement of computers allegedly containing relevant emails, finding that plaintiff had waived right to seek adverse inference since plaintiff knew about alleged spoliation for over a year, had plenty of time to move for discovery sanctions or raise issue in final pretrial order, and offered no explanation for delay in bringing matter to court?s attention

Nature of Case: Plaintiff alleged fraudulent transfer of assets

Electronic Data Involved: Emails, discarded computers

Viacom Intern. Inc. v. Youtube Inc., 2008 WL 2627388 (S.D.N.Y. July 2, 2008)

Dec 01 2008

Key Insight: Ruling on parties? cross-motions regarding production of various types of ESI sought by plaintiffs, court denied motion to compel source code given its value and secrecy and plaintiff?s failure to make proper preliminary showing justifying production; court further denied motion to compel production of schema for Google?s advertising database, but granted motion to compel as to data from YouTube logging database and schema for Google Video Content database

Nature of Case: Copyright infringement

Electronic Data Involved: Databases, computer source code which controls both the YouTube.com search function and Google’s internet search tool ?Google.com? and source code for YouTube’s ?Video ID? program

UMG Recordings, Inc. v. Doe, 2008 WL 2949427 (N.D. Cal. July 30, 2008)

Dec 01 2008

Key Insight: Where plaintiffs made prima facie showing of infringement, there was no other way to identify Doe defendant, and there was risk that ISP would destroy its logs prior to Rule 26(f) conference, court found that need for expedited discovery outweighed prejudice to defendant and granted plaintiffs? motion for leave to take immediate discovery

Nature of Case: Copyright infringement through use of peer-to-peer (“P2P”) networking

Electronic Data Involved: ISP logs; documents and ESI sufficient to identify defendant’s true name, current and permanent addresses and telephone numbers, email addresses, and Media Access Control addresses

In re Carco Elecs., 536 F.3d 211 (3rd Cir. 2008)

Dec 01 2008

Key Insight: Where party was dissatisfied with scope and degree of protection afforded by trial court?s protective order relating to production of source code, and appealed, Third Circuit found that the discovery order was neither final nor appealable and dismissed appeal

Nature of Case: Bankruptcy

Electronic Data Involved: Source code

Pandora Jewelry, LLC v. Chamilia, LLC, 2008 WL 4533902 (D. Md. Sept. 30, 2008)

Dec 01 2008

Key Insight: Court imposed monetary sanctions pursuant to Rule 37 for discovery violations related to defendant?s responses to discovery and its inadequate 30(b)(6) deponent, but declined to award spoliation sanction of adverse inference where defendants failed to preserve emails and could not identify blind copy recipients or explain who wrote the emails or to whom they were intended to be sent but where plaintiff failed to show injury resulting from the emails and could not establish that access to the emails or their recipient lists would have been favorable to that showing; court noted, ?the evidence in this case is easily distinguishable from the destroyed evidence in cases where courts have imposed spoliation sanctions?

Nature of Case: False advertising, tortious interference, unfair competition and related claims

Electronic Data Involved: Blind copy email recipients

Keithley v. Homestore.com, 2008 WL 4830752 (N.D. Cal. Nov. 6, 2008)

Dec 01 2008

Key Insight: Where late production of documents resulted in some prejudice to defendants but where prejudice was minor in light of limited relevance of the documents produced and their limited value to defendants? case and where defendants failed to show that documents missing from production were destroyed rather than ?simply lost? or a significant degree of resulting prejudice, court declined to impose dismissal or adverse inference but ordered monetary sanctions pursuant to Rule 37; monetary sanctions in the amount of $205,507.53 were subsequently ordered (Keithley v. Homestore.com, 2009 WL 55953 (N.D. Cal. Jan. 7, 2009))

Nature of Case: Patent Infringement

Electronic Data Involved: ESI, email

Catagory:Case Summaries