Case Summaries – Page 312 – Electronic Discovery Law

Klayman v. Freedom’s Watch, Inc., 2008 WL 5111293 (S.D. Fla. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court denied defendants’ motion for taxation of e-discovery costs amounting to $150,000 where defendant retained an outside firm to handle collections but failed to show the costs were “reasonable costs” pursuant to U.S.C ? 1920(4); court noted that “[i]n a non-electronic document case this work would be performed by paralegals and associate attorneys and would not be compensable under 28 U.S.C. ? 1920.”

Electronic Data Involved: ESI

Apsley v. Boeing Co., 2008 WL 191418 (D. Kan. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where structure of Boeing?s privilege log was result of the same emails (containing legal advice) being stored in more than one email file and/or legal advice being repeated in email strings, and Boeing listed all of the email messages by Bates number where legal communication was located, but redacted only the portion of the string that contained legal communications, court concluded that log adequately supported Boeing?s claim of privilege for multiple copies of the same communication, noting: ?The organization of a privilege log for electronic documents existing in multiple locations presents a challenge. Perhaps a better method would be to list the original legal communication by date, author and recipient and thereafter indicate that the other Bates-stamped documents are copies or a repeat of the original legal communication. However, electronic discovery is an evolving practice and Boeing will not be faulted for its efforts to organize the privilege log.?

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence

Nature of Case: Prisoner asserted ? 1983 action against various prison defendants

Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff

Outside the Box Innovations, LLC v. Travel Caddy, Inc., 2007 WL 5155945 (N.D. Ga. Mar. 27, 2008)

Dec 01 2008

Key Insight: Ruling on a number of discovery issues, court found that defendant?s production of electronic documents was proper, notwithstanding fact that production included numerous non-working files as well as unresponsive and offensive content; court noted that inappropriate and inoperable files represented small percentage of total documents produced, that defendant appeared to have been diligent in attempting to minimize such problems, and that ?it is likely that all electronic document production carries some possibility of technical difficulties?

Nature of Case: Patent infringement

Electronic Data Involved: Unspecified electronic files

Ogin v. Ahmed, 563 F.Supp.2d 539 (M.D. Pa. 2008)

Dec 01 2008

Key Insight: Where driver?s logs were relevant to plaintiff?s claims and defendants had notice of litigation and request to preserve them, but unilaterally determined that logs more than eight days prior to accident were irrelevant and destroyed them in the ?ordinary course of business,? court found that defendants actually suppressed and withheld driver’s logs and that adverse inference instruction was least severe and most appropriate sanction warranted under circumstances; court criticized defendants for not identifying date of destruction, individual responsible for such destruction, or time frame for such destruction pursuant to their retention policy and noted that defendants had not attached their retention policy as an exhibit to any filing or described any details of their retention policy

Nature of Case: Personal injury claims stemming from vehicle accident involving commercial tractor trailer and Jeep Wrangler

Electronic Data Involved: Computerized driver’s logs

In re Rosenthal, 2008 WL 983702 (S.D. Tex. Mar. 28, 2008)

Dec 01 2008

Key Insight: Finding that District Attorney?s admitted deletion of more than 2,500 emails sought by subpoena constituted ?unexcused, egregious conduct,? court found him in contempt of court and imposed $18,900 in sanctions (representing attorneys? fees); court further found that actions of attorney representing DA in the proceedings were ?unprincipled and dilatory, at best, constituting a deliberate indifference to the Court’s Orders and subpoena,? held him in contempt of court, and ordered that $5,000 of the $18,900 in sanctions awarded against DA was jointly and severally awarded against his attorney

Nature of Case: Civil rights suit against Harris County, Texas, the Harris County Sheriff and several Harris County deputies

Electronic Data Involved: Deleted emails of the District Attorney of Harris County, Texas

Reino de Espana v. Am. Bureau of Shipping, 2008 WL 3851957 (S.D.N.Y. Aug. 18, 2008)

Dec 01 2008

Key Insight: District court overruled Spain’s objections to Magistrate Judge?s various orders of November 3, 2006, January 25, 2007 and June 6, 2007

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

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

Musarra v. Digital Dish, Inc., 2008 WL 4758699 (D. Ohio Oct. 30, 2008)

Dec 01 2008

Key Insight: Where non-party indicated inability to perform electronic search of subpoenaed communication logs and estimated more than 100 hours of manual searching to respond and where subpoenaed information exceeded relevant scope of claims, court declined to impose ?unreasonable burden? on non-party and denied motion to compel; where identification and production of subpoenaed email would result in ?massive expense? but where plaintiffs offered to limit their request to a sampling, court decline to rule pending non-party?s response

Nature of Case: Wage and hour employment case

Electronic Data Involved: ESI, email

Moore v. Abbott Labs., 2008 WL 4981400 (S.D. Ohio Nov. 19, 2008)

Dec 01 2008

Key Insight: Where defendant produced relevant emails from targeted custodians but where plaintiff sought all emails mentioning his name and where additional searching would cost $300,000, court declined to compel production of additional emails; where emails were produced in hard copy and relevant metadata could not be seen, court ordered defendants to ?determine feasibility? of electronic production and to produce in electronic form ?absent unusual circumstances?; court denied motion to compel generally where plaintiff?s requests were overbroad and unreasonable in their scope

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Catagory:Case Summaries