Case Summaries – Page 305 – Electronic Discovery Law

MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 5381864 (E.D. Mich. Dec. 22, 2008)

Dec 01 2008

Key Insight: Despite their production?s compliance with Fed. R. Civ. P. 34, court ordered defendants to specifically identify documents responsive to particular requests where plaintiff could not ?easily locate the documents? responsive to those requests within the production; court ordered defendant to use search terms provided by plaintiffs, despite objections of burden and privilege, but ordered use of connector term ?and? rather than ?or? to return documents ?more responsive? to the requests; court declined to order forensic imaging of hard drive but ordered defendant?s expert to produce attorney?s eyes only report of examination of the hard drive to address specific concerns and to provide plaintiffs with a directory list for all defendant?s non-Altair computer hard drives

Nature of Case: Theft of trade secrets

Electronic Data Involved: ESI, email, hard drives

Martone v. Burgess, 2008 WL 5120047 (N.D. Cal. Dec. 3, 2008)

Dec 01 2008

Key Insight: Where defendants failed to demonstrate prejudice if required to preserve information, failed to adequately establish the inaccessibility of the information sought, and failed to demonstrate the absence of ?questions serious enough to require litigation,? court granted plaintiffs? motion for preliminary injunction and preservation order requiring defendants to preserve information useful for identifying persons accessing plaintiffs? intellectual property through defendants? website

Electronic Data Involved: Information regarding visitors to a particular website

Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008)

Dec 01 2008

Key Insight: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email and other ESI

Ferron v. Echostar Satellite, LLC, 2008 WL 341310 (S.D. Ohio Feb. 6, 2008)

Dec 01 2008

Key Insight: Concluding that ESI sought from plaintiff’s computers directly related to issues in dispute and that the computers likely contained certain relevant evidence that was not contained on CD-ROMs or email attachments previously produced by plaintiff, court granted defendants? motion for an extension of the date by which to designate experts to a date after their inspection of plaintiff’s computers; court extended various discovery deadlines and ordered parties to confer to formulate a procedure reasonably calculated to afford the moving defendants the discovery to which they were entitled, while at the same time protecting plaintiff?s privileged information

Nature of Case: Plaintiff alleged claims under Ohio consumer protection laws based upon emails received from defendants

Electronic Data Involved: Computer hard drives

Connor v. Sun Trust Bank, 2008 WL 623027 (N.D. Ga. Mar. 5, 2008)

Dec 01 2008

Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead

Nature of Case: FMLA claims

Electronic Data Involved: Email

Miyano Mach. USA, Inc. v. Miyanohitec Mach., Inc., 2008 WL 2364610 (N.D. Ill. June 6, 2008)

Dec 01 2008

Key Insight: Court applied balancing test and found that plaintiff?s inadvertent production of single privileged email on CD among 22,000 pages of documents did not effect waiver given expedited nature of discovery, scope of documents produced, limited extent of disclosure and lack of any demonstrable prejudice to defendants

Nature of Case: Trademark infringement, cybersquatting, unfair competition, unfair trade practices

Electronic Data Involved: Privileged email

Faloney v. Wachovia Bank, N.A., 2008 WL 2631360 (E.D. Pa. June 25, 2008)

Dec 01 2008

Key Insight: Email message drafted by a Wachovia corporate litigation attorney summarizing conference call and formulating legal advice concerning bank-wide policy on Wachovia’s relationships with certain customers was protected by attorney-client privilege and work product doctrine, notwithstanding inadvertent production

Nature of Case: Class action alleging that Wachovia conspired with telemarketing companies and payment processor to violate United States law

Electronic Data Involved: Privileged email

Lipari v. U.S. Bancorp, N.A., 2008 WL 2874373 (D. Kan. July 22, 2008)

Dec 01 2008

Key Insight: Noting that Rule 26(a)(1)(A)(ii) was disjunctive and allowed a party to provide either a copy or description of documents, court found that plaintiff had complied with rule by providing CD containing documents to defendants (regardless of whether document descriptions contained in disclosure statement were insufficient or whether CD was ?searchable?), but directed plaintiff to file supplemental disclosure statement in which he affirmatively states that documents contained on CD were documents he may use to support his claims

Nature of Case: Breach of contract, fraud, trade secret misappropriation and breach of fiduciary duty

Electronic Data Involved: CD containing documents listed in plaintiff?s Rule 26(a)(1) disclosure statement (consisting of more than 11,000 pages)

Barrett v. Ambient Pressure Diving, Ltd., 2008 WL 4280360 (D.N.H. Sept. 16, 2008) (Unpublished)

Dec 01 2008

Key Insight: Sanction of dismissal not warranted where data stored on dive computers was lost when it could no longer be downloaded after one year, since plaintiff did not engage in deliberate destruction, she did not know whether data was helpful or hurtful to her case because she had not seen it, and she had not known that data would automatically become unavailable for download after one year; defendant?s entitlement to alternative relief to be decided at trial; court further granted plaintiff?s motion for summary judgment dismissing defendant?s counterclaims for ?fraud on the court? and ?spoliation of evidence?

Nature of Case: Negligence, product liability, wrongful death

Electronic Data Involved: Dive information stored on VR3 dive computers

Cantrell v. Cameron, 195 P.2d 659 (Colo. 2008)

Dec 01 2008

Key Insight: Finding the court abused its discretion when it ordered production of a laptop for inspection but declined to incorporate restrictions or narrow scope of inspection and denied defendant?s motion for a protective order despite confidentiality concerns including attorney-client privilege and proprietary business information, appellate court vacated order and directed lower court to issue protective order limiting scope of inspection; court noted that while personal computers do implicate confidentiality issues requiring ?serious consideration of a person?s privacy interest,? ?a personal computer?s contents are not confidential by nature?

Nature of Case: Traffic accident resulting in personal injury

Electronic Data Involved: ESI, laptop

Catagory:Case Summaries