Case Summaries – Page 313 – Electronic Discovery Law

Varkonyi v. State, 276 S.W. 3d 27 (Tex. App. 2008)

Dec 01 2008

Key Insight: Appellate court found that pornographic video attached to an email from defendant was properly authenticated under Tex. R. Evid. 901(b)(4) where, considering the ?appearance, contents, substance and other distinctive characteristics, taken in conjunction with the circumstances,? the video was found to be what it was purported to be and where, applying the ?reply letter doctrine? the video was considered to be genuine and admissible in light of the fact that it was sent in response to a message sent by the government inquiring about the video, among other things

Nature of Case: Promotion of or possession with intent to promote obscene material

Electronic Data Involved: Pornographic video attachment to email

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

RGIS, LLC v. A.S.T., Inc., 2008 WL 186349 (E.D. Mich. Jan. 22, 2008)

Dec 01 2008

Key Insight: Court granted defendants? request for appointment of Fed. R. Civ. P. 53 special master to analyze and compare source codes of subject software prior to any discovery of proprietary source codes

Nature of Case: Copyright infringement

Electronic Data Involved: Source code for software in hand-held computers used for inventory control

APC Filtration, Inc. v. Becker, 2008 WL 548765 (N.D. Ill. Feb. 25, 2008)

Dec 01 2008

Key Insight: Court rejected defendants’ objections to magistrate judge’s December 21, 2008 order imposing sanctions of $99,462, upheld the December 21, 2008 order in its entirety, and ordered defendants to comply with the order by March 3, 2008

Nature of Case: Misappropriation of trade secrets and breach of employment contract

Electronic Data Involved: Computer

Peterson v. Tri-Country Metro. Transp. Dist. of Or., 2008 WL 723521 (D. Or. Mar. 14, 2008)

Dec 01 2008

Key Insight: Where emails and other documents stored on backup records were destroyed after complaint was filed, but reasons defendant began destroying such outdated mainframe reel-to-reel tapes at that time were (1) to reduce storage costs of up to $4,000 per year and (2) because data on tapes was no longer readable, and decision to destroy the unusable tapes not made by anyone who had anything to do with plaintiff, court concluded evidence did not support drawing any adverse inference from defendant?s intentional destruction of potentially probative evidence

Nature of Case: Claim for violation of FMLA

Electronic Data Involved: Emails stored on outdated mainframe reel-to-reel tapes

U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)

Dec 01 2008

Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner

Nature of Case: Breach of contract, account stated, open account, and unjust enrichment

Electronic Data Involved: Computer hard drives of plaintiff’s employees

St. Cyr v. Flying J, Inc., 2008 WL 2097611 (M.D. Fla. May 16, 2008)

Dec 01 2008

Key Insight: Court concluded that FRCP 26(5)(B) applied not only to ESI but to paper documents as well, and set out lengthy quote from advisory committee’s note; court denied plaintiff’s motion in limine to exclude evidence of plaintiff’s communications with expert, finding that plaintiff had waived work product protection by voluntarily producing the documents at expert’s deposition

Nature of Case: Negligence and strict liability

Electronic Data Involved: Letter and email produced in hard copy form

Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2008 WL 2487835 (W.D. Pa. June 16, 2008)

Dec 01 2008

Key Insight: Where defendant had produced significant number of requested documents and ESI ?on a rolling basis? but production was still not complete four months past original deadline and defendant claimed its vendor had just provided another 179,180 ESI documents, court struck compromise between respective deadlines urged by parties (August 15 and June 30, 2008) and ordered defendant to complete its production on or before July 23, 2008; court also issued stern warning that it would not hesitate to impose sanctions in the future for any discovery abuses

Nature of Case: Antitrust and unfair competition claims

Electronic Data Involved: ESI

U.S. v. Two Bank Accounts, 2008 WL 2696927 (D.S.D. July 2, 2008)

Dec 01 2008

Key Insight: Where party initially told government he did not have certain computers used in various businesses discussed in complaint, then revealed that he possessed the computers but objected to providing them to government, and then admitted having removed hard drives and hiring third party to create a mirror images, court ruled that government was not bound to accept mirror image made by third party and ordered party to produce computers to government for inspection; court further ordered government to promptly create mirror image of hard drives and return computers promptly to party

Nature of Case: Forfeiture action

Electronic Data Involved: Hard drives of certain computers used in the transactions alleged in the complaint

Law Offices of Ben C. Martin LLP v. Sweet, 2008 WL 2045477 (N.D. Tex. Mar. 19, 2008)

Dec 01 2008

Key Insight: Where neutral expert could not testify, based on forensic search of Sweet?s computer, that Sweet or someone at his direction had intentionally destroyed subject email, and it appeared that most of expert?s report went beyond scope of his duties as neutral expert and was irrelevant to any issues in case, magistrate judge recommended that plaintiffs? motion for spoliation sanctions be denied and that certain portions of expert?s report be stricken; Report and Recommendation adopted by district court, 2008 WL 2130574 (N.D. Tex. Apr. 23, 2008)

Nature of Case: Dispute over fee owed to Martin and his firm as a result of settlement and verdict in medical malpractice case

Electronic Data Involved: Email sent by Martin via his Blackberry to Sweet confirming the terms of fee arrangement

Catagory:Case Summaries