Case Summaries – Page 310 – Electronic Discovery Law

Huang v. Gateway Hotel Holdings, 2008 WL 2486030 (E.D. Mo. June 18, 2008)

Dec 01 2008

Key Insight: Court ruled that plaintiffs were not required to produce for forensic inspection their ?desktop computers, cell phones, e-mail machines, laptop computers, mobile phones, ESI storage media, handheld computers and personal digital assistants,? but ordered plaintiffs determine which plaintiffs owned such devices and to produce a list of names and equipment to defendant within 20 days, and defendant would be allowed to re-file the discovery request with a showing of need; court further ruled that defendant need not produce pay and time records in an accessible electronic format but gave plaintiffs leave to re-file motion upon a showing that defendant had not supplied all available pay and time records

Nature of Case: FLSA claims, retaliation

Electronic Data Involved: Computers, cell phones and ESI storage devices used by plaintiffs

Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, 2008 WL 2901864 (N.D. Ga. July 23, 2008)

Dec 01 2008

Key Insight: Ruling on various discovery issues, court set protocol for production of certain documents by non-party: (1) plaintiffs to specify documents sought in native format with metadata; (2) within 10 days, non-party to file with court an estimate of the cost of production of all documents; (3) within 10 days, plaintiffs to pay into court?s registry total sum of non-party?s estimate, or limit request to reduce estimated costs; (4) within 21 days, non-party to produce those documents or electronic files to plaintiffs in their original format with metadata; (5) within 10 days, non-party to file bill of actual costs incurred; (6) court to review costs and may appoint expert to help court determine reasonableness; (7) court to enter order directing clerk to pay non-party reasonable sum

Nature of Case: Fraud and negligence claims

Electronic Data Involved: Unspecified electronic documents

Hightower v. Heritage Acad. of Tulsa, Inc., 2008 WL 2937227 (N.D. Okla. July 29, 2008)

Dec 01 2008

Key Insight: Observing that defendant had not argued that requested emails were not reasonably accessible and had not otherwise demonstrated that production of emails by four identified individuals on single topic over four-year period was unduly burdensome, court rejected defendant?s overbreadth and burdensome objections and ordered defendant to produce responsive documents

Nature of Case: Employment discrimination, wrongful termination

Electronic Data Involved: Emails sent or received by four members of defendant’s Board of Trustees pertaining to plaintiff and/or her employment

Fausto v. Credigy Servs. Corp., 251 F.R.D. 436 (N.D. Cal. June 19, 2008)

Dec 01 2008

Key Insight: Denying plaintiffs? request to delay production of recorded telephone conversations until after depositions of defendant debt collector’s employees had occurred, court rejected plaintiffs’ unsupported and conclusory argument that witnesses would tailor their testimony to match recordings (thus negating impeachment value); court noted that equity and fairness weighed in favor of production to allow defendant an equal opportunity to prepare

Nature of Case: Consumers alleged violations of federal and state debt collection laws

Electronic Data Involved: Recorded telephone conversations between plaintiffs and debt collectors employed by defendant

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

Catagory:Case Summaries