Case Summaries – Page 329 – Electronic Discovery Law

Reino de Espana v. Am. Bureau of Shipping, 2007 WL 1686327 (S.D.N.Y. June 6, 2007)

Dec 01 2007

Key Insight: Declining to grant sanction of dismissal since there was insufficient evidence of intentional or bad faith conduct, or adverse inference instruction since it was unclear how relevant the missing email was, court awarded monetary sanctions since Spain?s failure to timely implement adequate litigation hold and failure to conduct timely and diligent search for electronic discovery was negligent and resulted in loss of email; court further directed Spain to complete its forensic search for email records and produce such records on rolling basis

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

Electronic Data Involved: Email

Sharma v. Vinmar Int’l, Ltd., 2007 WL 177691 (Tex. App. Jan. 25, 2007) (Not yet released for publication)

Dec 01 2007

Key Insight: Appellate court affirmed trial court’s order granting temporary injunction protecting Vinmar’s trade secrets; evidence at hearing included testimony of neutral forensic computer analyst jointly hired by the parties pursuant to court order, who examined former employees? computers and located some 321,000 “hits” using keyword search “Vinmar,” which expert said translated into thousands of Vinmar documents on those computers, and found indications of possible spoliation

Nature of Case: Chemical trading company sued former employees to enforce confidentiality and non-compete agreements

Electronic Data Involved: Proprietary information, spreadsheets

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 781648 (S.D. Ohio Mar. 12, 2007)

Dec 01 2007

Key Insight: Court awarded $22,371 in sanctions representing plaintiff’s reasonable attorneys’ fees and expenses incurred in connection with earlier motion to compel that court granted on November 14, 2006; court further ordered that plaintiff’s second motion to compel relating to the same issues would be set for hearing

Nature of Case: UCC claims arising from defendant’s Internet-based check service

Electronic Data Involved: Databases

Perez-Farias v. Global Horizons, Inc., 2007 WL 991747 (E.D. Wash. Mar. 30, 2007)

Dec 01 2007

Key Insight: Court denied defendants’ FRCP 60(b) motion for relief from discovery orders, and ordered defendants to comply with prior orders and, among other things, produce certain database in native format, and produce requested email and Excel spreadsheet

Nature of Case: Class action brought by farm workers

Electronic Data Involved: Database, email and spreadsheet

Hill v. Eddie Bauer, 2007 WL 1309536 (C.D. Cal. Mar. 29, 2007)

Dec 01 2007

Key Insight: Ruling on plaintiff’s motion to compel, court expressed dismay that parties had not addressed discovery of ESI given FRCP e-discovery amendments and fact that much of the evidence was in electronic format; court ordered parties to personally meet and confer to discuss a discovery plan addressing, among other things, electronic discovery, modifications to the Federal Rules, depositions, and the like, and lodge the proposed discovery plan by certain date

Nature of Case: Individual and class action alleging labor abuses

Electronic Data Involved: Sales information, employee information

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 2122438 (D. Kan. July 20, 2007)

Dec 01 2007

Key Insight: Court granted defendants’ motion for clarification and ruled that defendants would be permitted to conduct limited ex parte interviews with plaintiff’s former employee relating solely to particular database at issue, including the underlying functioning of the Advantx database and how Heartland, in particular, used that database and any custom-designed reports which Heartland may have developed; defendants were also free to ask former employee to operate the version of Heartland’s Advantx program and the Advantx database that Heartland produced in this case and were free to ask him to run searches using the program and to prepare any customized reports defendants may request from the database

Nature of Case: Antitrust and tortious interference litigation

Electronic Data Involved: Interviews with former employee re database used by plaintiff

Am. Fast Freight, Inc. v. Nat’l Consol. & Distrib., Inc., 2007 WL 3357694 (W.D. Wash. Nov. 7, 2007)

Dec 01 2007

Key Insight: Court granted plaintiffs’ motion to compel production of: (1) electronic data used to answer interrogatories, (2) information systems organizational charts, (3) policies and records regarding electronic data, electronic backup, electronic data retention and destruction, finding that the requests could lead to relevant evidence regarding what efforts defendant made to preserve ESI, since plaintiffs alleged that defendant failed to produce ESI with its initial disclosures under FRCP 26(a)(1)

Nature of Case: Breach of contract, unjust enrichment

Electronic Data Involved: ESI used to answer interrogatories; backup and retention policies

Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090 (Ala. 2007)

Dec 01 2007

Key Insight: In light of evidence presented by Cooper that burden of producing responsive emails would entail thousands of hours and hundreds of thousands of dollars, Alabama Supreme Court granted in part petition for writ of mandamus and instructed trial court to ?specifically address Cooper’s arguments that compliance with the plaintiffs’ request for the discovery of e-mails is unduly burdensome in light of the recent federal guidelines on that subject,? and to enter an appropriate protective order to the extent it found that the production of certain ESI was unduly burdensome; court further opined that trial court should consider the 2006 FRCP amendments and the factors applied in Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Nature of Case: Defendant tire manufacturer in product liability case petitioned Alabama Supreme Court for writ of mandamus ordering trial court to grant its motion for a protective order limiting discovery

Electronic Data Involved: Emails and other ESI

Adams Land & Cattle Co. v. Hartford Fire Ins. Co., 2007 WL 4522627 (D. Neb. Dec. 18, 2007)

Dec 01 2007

Key Insight: Where plaintiff?s counsel became aware of mistaken production of privileged email during June deposition but waited until September to contact defense counsel to explain the inadvertent disclosure and request that defendant destroy and agree not to use the email, court applied five-part test and found ?no overriding interest of justice that requires the Court to relieve plaintiff’s counsel of its production errors?

Nature of Case: Insurance coverage

Electronic Data Involved: Privileged email

Digene Corp. v. Third Wave Techs., Inc., 2007 WL 4939048 (W.D. Wis. Oct. 24, 2007)

Dec 01 2007

Key Insight: Where discovery missteps which resulted in delayed production of notebooks were merely negligent and not reckless or intentional, court imposed penalty of cost-shifting and reimbursement in the amount of $50,000 and declined to impose any of the ?inquisitorial sanctions? demanded by plaintiff; court further ruled that ?no [defense] attorneys will be dragged behind a chariot outside the city’s walls.?

Nature of Case: Patent infringement and antitrust claims

Electronic Data Involved: Scientists’ notebooks that were converted into electronic format

Catagory:Case Summaries