Case Summaries – Page 310 – Electronic Discovery Law

Gateway Senior Hous., Ltd. v. MMA Fin., Inc., 2008 WL 5142152 (E.D. Tex. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants? proffered explanations for the destruction of those hard drives was contradicted and ?lame? in light of defendants? knowledge of their relevance and its duty to preserve

Nature of Case: Breach of contract

Electronic Data Involved: ESI, emails, hard drives

Flying J, Inc. v. TA Operating Corp., 2008 WL 5449714 (D. Utah Dec. 31, 2008)

Dec 01 2008

Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order

Nature of Case: Unlawful conspiracy to prevent and suppress competition

Electronic Data Involved: ESI on back up tapes

U.S. v. Simels, 2008 WL 5383138 (E.D.N.Y. Dec. 18, 2008)

Dec 01 2008

Key Insight: Where attorneys for lay criminal defendant were indicted for conspiracy and privileged materials were seized, parties established procedure for identification of privilege by allowing ?privilege team? of government lawyers segregated from prosecution team to review seized materials, concurrent with defense teams, and for the teams to reach agreement regarding each documents privilege status; where lay criminal defendant refused to waive attorney client privilege such that attorney defendants could use privileged materials at trial, court ruled disclosure to attorney defendants? counsel would not waive lay defendant?s privilege but declined to rule on the use of those materials at trial where such consideration was ?premature?

Nature of Case: Narcotic trafficking, conspiracy

Electronic Data Involved: Privileged ESI

Powell v. Sharpsburg, 2008 WL 5422577 (E.D.N.C. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where defendant willfully destroyed relevant work orders pursuant to its document retention policy but where defendant should have been aware of the relevance of the documents and the resulting duty to preserve, court ordered adverse inference in favor of plaintiff and prohibited defendants from introducing secondary evidence of contents of spoliated documents

Nature of Case: Title VII action for discriminatory discipline based on race

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

Peacock v. Merrill, 2008 WL 509636 (S.D. Ala. Feb. 22, 2008)

Dec 01 2008

Key Insight: Where defendants did not have any knowledge of a particular computer disk containing relevant evidence, much less an exact copy of that disk, when they first deposed plaintiff, and plaintiff’s prior sworn statements about the disk were conflicting, court granted defendants? motion for leave to depose plaintiff a second time on the limited issue of her knowledge of the existence of the disk and its contents

Nature of Case: Conversion, interference with business relationships, breach of fiduciary duties and conspiracy claims

Electronic Data Involved: Metadata; CD-ROM containing data retrieved from inoperable computer

Thomas v. IEM, Inc., 2008 WL 695230 (M.D. La. Mar. 12, 2008)

Dec 01 2008

Key Insight: Where plaintiff wrongly served Rule 45 subpoena on defendant in attempt to avoid discovery deadline, and subpoena was not limited in terms of time or subject matter but simply requested all emails contained in designated individuals’ in-boxes as of a particular date, and defendant set forth detailed account of burden and specific estimate of staff hours and cost that would be expended to comply with subpoena, court denied plaintiff’s motion to compel defendant’s compliance with subpoena

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Entire electronic mailboxes of key players

Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 783301 (N.D. Ill. Mar. 25, 2008)

Dec 01 2008

Key Insight: Where requesting party complained that information generated and produced in response to agreed-upon keyword search of ?Goldmine? database was inadequate and not rectified by index of customer information documents subsequently provided, and that additional information (such as dates) was needed, court ordered parties to confer about how date information could be retrieved and granted motion to compel only to the extent that requesting party?s consultant would be allowed to run his original protocol to determine if date information should have been produced in conformity with that protocol; costs to be borne by requesting party unless it appeared that date information had been wrongly withheld, in which case responding party would bear all of the costs, expenses and attorneys’ fees resulting from nonproduction of the information

Nature of Case: Trademark infringement

Electronic Data Involved: Goldmine customer relations management database

Liberty Mut. Ins. Co. v. Tedford, 2008 WL 2080930 (N.D. Miss. May 13, 2008)

Dec 01 2008

Key Insight: Ruling on various disputed discovery requests, court overruled insurer?s overbroad and unduly burdensome objections to interrogatory seeking information about similar claims made against insurer within last ten years, and agreed with defendant that it was not necessary to rely on computer retrieval of relevant information, but on information provided by employees, and that there may be less expensive means of determining the existence of such information: ?For example, an e-mail to all Liberty Mutual employees asking if they recall any such claims or cases in the last ten years is a simple, inexpensive means of discovering whether any claims were ever made in Mississippi. Liberty Mutual has a duty to at least attempt to determine if information responsive to this interrogatory exists, if not by computerized search of files (a general search of a computer data base surely would be a start), then at least by inquiry of employees who may have relevant, discoverable information. At a minimum, a good faith effort is required.?

Nature of Case: Insurance coverage

Electronic Data Involved: Information regarding similar claims made against insurer

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

Catagory:Case Summaries