Case Summaries – Page 327 – Electronic Discovery Law

Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D. Cal. Sept. 18, 2007)

Dec 01 2007

Key Insight: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct

Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud

Electronic Data Involved: Email and other electronic documents

Escobar v. City of Houston, 2007 WL 2900581 (S.D. Tex. Sept. 29, 2007)

Dec 01 2007

Key Insight: Adverse-inference instruction not warranted where there was no showing that relevant electronic communications were destroyed or that destruction occurred in bad faith; officers involved in the shooting were not likely to have used email to communicate about the event in the day after it occurred, and, under HPD’s document retention and destruction policy, electronic communications records were routinely destroyed within ninety days

Nature of Case: Wrongful death action based on shooting death of 14-year-old boy by police officer

Electronic Data Involved: Records of Houston Police Department electronic communications in the 24 hours after victim’s death

Lamb v. Maloney, 850 N.Y.S.2d 138 (N.Y. App. Div. 2007)

Dec 01 2007

Key Insight: Trial court did not err in denying without prejudice plaintiff?s motion, based on spoliation of evidence, to strike defendants? answers or preclude defendants? use of office records to support their defenses; however, court did err in not granting alternative relief requested, i.e., compelling additional discovery, including depositions of certain witnesses, production of records, and inspection of computers, since such additional discovery was reasonably calculated to produce relevant and material evidence and defendants failed to demonstrate any prejudice as a result

Nature of Case: Medical malpractice

Electronic Data Involved: Office computer hard drive and information regarding its destruction

In re ATM Fee Antitrust Litig., 2007 WL 1827635 (N.D. Cal. June 25, 2007)

Dec 01 2007

Key Insight: Where, at the start of the litigation, parties agreed to production of ESI in a particular format (?TIFF? files subject to a scanning process known as ?OCR?), court declined to compel defendants to comply with amended Rule 34 for future document productions, commenting: ?An amendment to the civil rules-nearly two year after the filing of the lawsuit, and long after the parties established a system for propounding electronic discovery-does not justify the abdication of the parties’ agreement, especially given the security concerns raised by Defendants about maintaining the confidentiality of electronic documents. Of course, if the parties can stipulate to the production of some materials in native electronic format, they are free to do so. Otherwise, the Court orders that production of additional materials shall proceed in accordance with the parties’ prior agreement.?

Nature of Case: Antitrust

Electronic Data Involved: Unspecified ESI

McKenna v. Nestle Purina PetCare Co., 2007 WL 433291 (S.D. Ohio Feb. 5, 2007)

Dec 01 2007

Key Insight: Court denied without prejudice plaintiff?s motion for sanctions based upon defendant?s claimed inability to retrieve the contents of plaintiff?s email account, where defendant had identified several older emails at the time of plaintiff?s discharge (to support its termination of plaintiff) but represented in discovery that its employees’ email accounts were overwritten beginning on the eighth day after a message was either sent or received and that no additional emails existed beyond those produced; court suggested that defendant investigate the matter and be prepared, if requested in discovery, to provide a further explanation of the apparent discrepancy between its ability to retrieve emails at the time of plaintiff?s discharge and its current ability to do so

Nature of Case: Wrongful termination, employment discrimination

Electronic Data Involved: Email

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 773722 (D. Kan. Mar. 9, 2007)

Dec 01 2007

Key Insight: Where court had earlier ordered production and inspection of defendants’ computer, but had also entered a protective order governing such production and inspection, court declined to sanction defendants and found that the most “just manner” to apportion fees and costs was for each of the parties to pay their own

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

Io Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court granted plaintiff’s motion to compel and denied defendant’s request to shift costs of production to plaintiff, since defendant provided no information about whether and how such information was “inaccessible” or any other information relevant to cost-shifting determination under Zubulake III; court encouraged parties to agree on most efficient means of production and noted that plaintiff had indicated willingness to provide high capacity storage devices

Nature of Case: Copyright infringement

Electronic Data Involved: Adult video content; website traffic information

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Fortis Corporate Ins., SA v. Viken Ship Mgmt. AS, 2007 WL 3287357 (N.D. Ohio Nov. 5, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff’s motion for spoliation sanctions, finding no basis in the record for concluding that defendant’s failure to preserve email and other materials was so blameworthy that defendant should be deprived, either in whole or part, of the opportunity to defend the case on the merits, and adding: “Perhaps in the fullness of time foreign-based companies doing business in the United States will be held to the same ‘litigation holds’ and other devices now routinely applied by litigants here to make sure pertinent documents and other materials are retained and produced. And perhaps they should be held to the same standards in an era of ever-expanding global trade. Increasingly negligence on the other side of the globe can cause injury locally.”

Nature of Case: Subrogation action against foreign-based shipowner

Electronic Data Involved: Email

Manning v. Gen. Motors, 2007 WL 4246047 (D. Kan. Dec. 4, 2007)

Dec 01 2007

Key Insight: Although court found it ?difficult to imagine? that defendant did not possess any responsive electronic or paper documents, plaintiff submitted no information upon which to question defendant?s representation and court had no basis to compel production; court instead required defendant to supplement discovery responses unconditionally representing that no responsive documents were in its possession, custody or control

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic records identifying vacant positions at GM plant

Catagory:Case Summaries