Case Summaries – Page 305 – Electronic Discovery Law

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

Wells v. Berger, Newmark & Fenchel, P.C., 2008 WL 4365972 (N.D. Ill. Mar. 18, 2008)

Dec 01 2008

Key Insight: Granting in part motion in limine seeking sanctions for spoliation of evidence where defendants did nothing to preserve key player?s computer files but instead allowed him to continue using computer without monitoring, copying, reviewing or securing potentially relevant information, and key player admitted deleting potentially relevant files, court set out statement that would be read to jury concerning defendants? failure to preserve evidence and prohibited defendants from offering any argument or comments suggesting that lack of pornographic emails in evidence supported a finding that such emails never existed or were never shown to plaintiff

Nature of Case: Sexual harassment, constructive discharge, emotional distress

Electronic Data Involved: Pornographic emails, hard drive

Spieker v. Quest Cherokee, LLC, 2008 WL 4758064 (D. Kan. Oct. 30, 2008)

Dec 01 2008

Key Insight: Granting leave to refile, court denied plaintiff?s motion to compel production of emails for failure to show their relevance to class certification but rejected defendants? argument that $375,000 cost of production was unduly burdensome in light of amount in controversy where defendant argued claims of named plaintiffs were worth $100,000 or less but plaintiff argued claims of the class exceeded $5 million; court also stated that where defendant was in better position to identify search terms it should do so to reduce volume, that the cost of production versus the amount in controversy did not render email data ?not reasonably accessible,? and that parties should address Rule 502 in any future discussions regarding cost, among other things

Nature of Case: Class action for failure to pay royalties arising from oil and gas leases

Electronic Data Involved: Email

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

Catagory:Case Summaries