Case Summaries – Page 306 – Electronic Discovery Law

DL v. Dist. of Columbia, 251 F.R.D. 38 (D.D.C. 2008)

Dec 01 2008

Key Insight: Where District’s discovery responses were insufficient, objections unfounded, and “rolling” production of documents spanned two years with ten supplemental responses, and where plaintiffs presented evidence that District had failed to give witnesses timely instructions for preserving and producing relevant email, court ordered District to review each of plaintiffs’ document requests, perform a complete and thorough search for responsive documents (including emails and faxes), and provide responsive documents to plaintiffs; court further awarded plaintiffs their reasonable attorneys’ fees and expenses in bringing motion, and ruled that District would be required, upon completion of discovery, to certify to court that it has responded fully to all document requests and that no other responsive documents exist as of time of certification

Nature of Case: Plaintiffs alleged that District violated Individuals with Disabilities and Education Act

Electronic Data Involved: Email

St. Tammany Parish Hosp. Serv. Dist. v. Travelers Prop. Cas. Co. of Am., 2008 WL 728948 (E.D. La. Mar. 17, 2008)

Dec 01 2008

Key Insight: Where plaintiff explained that earlier drafts of expert?s report were not ?destroyed,? but that expert merely saved different ?iterations? of report within same file on his computer until report was complete, and where there was no indication that drafts of report were edited or ?ghost-written? to support a predetermined outcome, court denied defense motion for spoliation sanctions

Nature of Case: Insurance coverage

Electronic Data Involved: Prior drafts of expert’s report

Floyd v. City of New York, 2008 WL 4179210 (S.D.N.Y. Sept. 10, 2008)

Dec 01 2008

Key Insight: Where all information in particular NYPD database was relevant to plaintiffs? claims and not subject to law enforcement privilege, court granted plaintiffs? motion to compel production of data with exception of names of suspects and police officers and subject in part to protective order to be negotiated by parties or imposed by court

Nature of Case: Class action alleging defendants sanction a policy and practice of stop and frisks by the New York Police Department on the basis of race and ethnicity

Electronic Data Involved: NYPD database

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

Fharmacy Records v. Nassar, 572 F. Supp. 2d 869 (E.D. Mich. 2008)

Dec 01 2008

Key Insight: Court declined to reconsider dismissal of plaintiffs? case as sanction for ?campaign of fraud? that included intentionally wiping data, ?losing? original CDs and tape recordings, and misrepresentations to the court where the court found plaintiff?s behavior willful and prejudicial and where lesser sanctions would not have sufficed and where plaintiffs? alleged ?new evidence? was also ?suspect?; dismissal affirmed on appeal (2010 WL 2294538)

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Reckley v. City of Springfield, 2008 WL 5234356 (S.D. Ohio Dec. 12, 2008)

Dec 01 2008

Key Insight: Court declined to find waiver of inadvertently produced emails pursuant to ER 502(b) where some of the emails were marked attorney-client privileged, where counsel took prompt steps to claim the privilege and seek their return, and where the disclosure ?took place in the context particularly intended to be addressed by Fed. R. Evid. 502, the production of electronically stored information.?

Electronic Data Involved: Emails

Catagory:Case Summaries