Case Summaries – Page 312 – Electronic Discovery Law

Baird v. Dept. of the Army, 517 F.3d 1345 (Fed. Cir. 2008)

Dec 01 2008

Key Insight: Finding that administrative judge abused his discretion in refusing to compel production of relevant email, and given defendant?s ?lax attitude? towards compliance with plaintiff?s discovery requests, court vacated final decision of Board and remanded case to Board, to be remanded to administrative law judge with directions to order defendant to promptly produce all relevant emails and to assure that all relevant personnel either had already, or will promptly, produce all relevant emails; if such production of email resulted in further evidence to support Baird’s theory, administrative judge to afford Baird another hearing

Nature of Case: Civilian employee at Army hospital sought review of Merit Systems Protection Board final decision sustaining her termination for having failed random drug test

Electronic Data Involved: Email

Melcher v. Apollo Med. Fund Mgmt. L.L.C., 859 N.Y.S.2d 160 (N.Y. App. Div. 2008)

Dec 01 2008

Key Insight: Where there was no proof that plaintiff intentionally destroyed or withheld evidence, plaintiff’s assistant testified that she searched his computers, and there was an adequate explanation for non-production of two items of correspondence, appellate court found trial court had improperly directed the cloning of plaintiff’s computer hard drives and reversed lower court’s order

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Computer hard drives

Sprenger v. Rector of Va. Tech, 2008 WL 2465236 (W.D. Va. June 17, 2008)

Dec 01 2008

Key Insight: Where factual record was sparse and consisted solely of employer’s internet and email use policy, and no information was provided regarding knowledge, implementation, or enforcement of policy, court observed it had facts to determine only one of the four factors set out in In Re Asia Global Crossing, Ltd ., 322 B.R. 247 (Bankr. S.D.N.Y. 2005) and found that defendant had failed to meet its burden of demonstrating waiver of marital privilege; court quashed subpoena to plaintiff?s husband?s employer

Nature of Case: Employee alleged civil rights violations and violations of ADA and FMLA

Electronic Data Involved: ?[A]ll electronically stored information on all computers, laptops, PDA’s, portable media or other devices? utilized by plaintiff’s husband at his place of work relating to plaintiff’s claims

Kayongo-Male v. S.D. State Univ., 2008 WL 2627699 (D.S.D. July 3, 2008)

Dec 01 2008

Key Insight: Where defendant argued it produce in hard copy format (Excel spreadsheets) all the information that defense expert relied on in creating his regression models, court ordered defendant to produce raw data in electronic format but denied plaintiff?s request to depose defense expert or persons responsible for compiling the information

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic copy of raw, unfiltered data from defendant’s human resource database which defense expert used to conduct regression analysis

Mon River Towing, Inc. v. Indus. Terminal & Salvage Co., 2008 WL 2412946 (W.D. Pa. June 10, 2008)

Dec 01 2008

Key Insight: Nothing that in its estimation, “‘a print-out of computer data’ is significantly different than the report requested here by Defendant or any ‘analyses’ of documents,” court ruled that Rule 34 does not require responding party to create or generate responsive materials in specific form requested by the moving party; however, to extent that party merely requested computer print-out of information at issue, such print-outs fell within bounds of Rule 34 and should be produced

Nature of Case: Negligence, lost profits and indemnification

Electronic Data Involved: Computer printouts

Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to establish relevance of comment that was posted by individual defendant on Dattallegro?s web log (?blog?) but was later made unavailable for public access, and defendants had represented to court that they intended to meet their discovery obligations and would meet and confer with plaintiff to define scope of parties’ preservation obligations and protocols, court rejected plaintiff?s claim that defendants had destroyed relevant evidence and denied motion for preservation order

Nature of Case: Patent infringement

Electronic Data Involved: Web log comment

Laface Records, LLC v. Does, 2008 WL 4517178 (D.D.C. Oct. 6, 2008)

Dec 01 2008

Key Insight: Court granted motion to serve limited, immediate discovery on third party internet service provider seeking identities and contact information of defendants where court acknowledged ?good cause exists for Plaintiffs? discovery because Defendants must be identified before this suit can progress?; court ordered third party provider to give five days notice to defendants and set deadline for potential motions to quash

Nature of Case: Copyright infringement

Electronic Data Involved: Names and contact information for ISP subscribers

Kinnally v. Rogers Corp., 2008 WL 4850116 (D. Ariz. Nov. 7, 2008)

Dec 01 2008

Key Insight: Where plaintiffs offered only an inference that evidence was destroyed based on ?the mere lack of evidence? produced by defendant and where plaintiffs failed to take timely action to address discovery disputes, court denied plaintiffs? motion for an adverse inference based on spoliation; addressing plaintiffs? argument that defendant?s failure to issue a timely litigation hold notice resulted in destruction of evidence, court noted, ?[w]hile a party must ?put in place a ?litigation hold? to ensure the preservation of relevant documents, there is no requirement that it must be written.? [citation omitted]

Nature of Case: Age discrimination

Electronic Data Involved: ESI, email

In re Zurn Pex Plumbing Prod. Liab. Litig., 20008 WL 5104173 (D. Minn. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court compelled production of deponent to answer specifically tailored questions regarding retention of electronically stored documents where plaintiff suspected spoliation due to defendant?s failure to timely issue preservation notices and where inquiry into retention policies would assist in narrowing scope of discoverable electronic materials; court also compelled production of identity of author of relevant email

Nature of Case: Products liability

Electronic Data Involved: Document retention policies, email

Huthnance v. D.C., 255 F.R.D. 285 (D.D.C. 2008)

Dec 01 2008

Key Insight: Where defendants? radio log indicated a relevant communication occurred but where defendants were unable to produce the audio tape, court ordered defendant to produce its document retention policies to show ?whether the [communications] were maintained according to standard procedure?

Nature of Case: Claims arising from alleged illegal arrest and detention

Electronic Data Involved: Audio tapes of phonecalls, access to

Catagory:Case Summaries