Catagory:Case Summaries

Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

In this case, the parties filed cross-motions for summary judgment but failed to comply with the requirement of Rule 56 that they support their motions with admissible evidence.  Chief United States Magistrate Judge Paul W. Grimm denied both motions without prejudice to allow resubmission with proper evidentiary support.  In this lengthy memorandum opinion, Magistrate Judge Grimm remarks that, although cases abound regarding the discoverability of electronic records, research failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence.  “Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.”  Magistrate Judge Grimm describes five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice, and counsels:

Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses.  Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try.  The Court hopes that the explanation provided in this memorandum order will assist in that endeavor.

View the full opinion on the court’s website, here.

Oxford House, Inc. v. City of Topeka, 2007 WL 1246200 (D. Kan. Apr. 27, 2007)

This litigation arose from the City of Topeka’s decision to deny plaintiff’s request for conditional use permits.  Plaintiff propounded interrogatories seeking information related to the City’s decision on the permits, specifically requesting information about, among other things:  “Each and every communication related to the application expressed in instant messages, either saved on a data recording medium or not saved.”  In response, the City referred plaintiff to certain documents that had been produced.  Plaintiff asserted that the documents did not sufficiently respond to the interrogatory, and argued that the City failed to identify specific emails or ex parte electronic communications, resulting in an incomplete discovery response.  Plaintiff moved to compel further responses.  The City countered that:  (1) it possessed no additional documents or information responsive to the requests, and (2) the requests were unduly burdensome.  The court sided with the City on both arguments, and denied the motion to compel.
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Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007)

In this employment discrimination case, plaintiff sought the production of email of seven Xpedx employees during various time periods.  Plaintiff contended that defendant implemented a new email deletion policy in 2003, under which emails were deleted within 90 days of creation, unless designated for retention.  Plaintiff asserted that, under defendant’s policy, an email "that is automatically deleted by the system can not be restored except with the expressed consent of a member of the company’s legal or tax departments."  Plaintiff further contended that defendant’s archive system, "legal hold" folders, and defendant’s permanent back-up computer system may contain copies of the requested emails.  Thus, plaintiff sought permission to take the deposition of defendant’s corporate representative for information technology regarding defendant’s email deletion policy and procedures for retrieving deleted emails.  Plaintiff argued that this would allow the parties to determine the existence of deleted emails and if defendant destroyed any evidence relating to plaintiff’s claims.
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Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. Apr. 24, 2007)

In this case, Greyhound Lines, Inc. sued Robert Wade and Archway Cookies, LLC (collectively Archway).  In August 2000, an Archway truck driven by Wade rear-ended a Greyhound bus on Interstate 80 in Nebraska.  After a bench trial, the district court apportioned fault at 85 percent to Archway and 15 percent to Greyhound.  Archway appealed, asserting, among other things, that the court erred in refusing to impose sanctions for alleged spoliation of electronic data. Read More

Metro Wastewater Reclamation Dist. v. Alfa Laval, Inc., 2007 WL 1160012 (D. Colo. Apr. 19, 2007)

In this brief order, the court granted defendant’s motion to compel and ordered plaintiff to produce, among other things, certain plant data “in electronic format” and “all electronic documents, including the archived or back-up emails and electronic files for the Plaintiff’s personnel involved with the Project who are specifically identified in [defendant’s] Requests for Production related to the processes and operation of the Plant.”

The case involved claims for breach of a procurement contract for failure to meet the guaranteed specifications, and counter-claims seeking declaratory judgment relief related the contract.  Plaintiff had argued that the requested discovery was irrelevant, overly broad, overly burdensome, and costly.  The court’s analysis was short — it simply found that the requested discovery as outlined in the motion was relevant to the issues pending before the court and was discoverable under Fed. R. Civ. P. 26.

World Courier v. Barone, 2007 WL 1119196 (N.D. Cal. Apr. 16, 2007)

In this misappropriation of trade secrets case, plaintiff moved for sanctions for spoliation of evidence based upon the admitted destruction of a hard drive containing a copy of plaintiff’s data by defendant Barone’s husband, Jay Barone.  Plaintiff sought an adverse inference instruction and monetary sanctions consisting of compensation for the time and expense involved in the forensic examination of computer files, the time and costs associated with developing deposition testimony and document discovery, and attorney’s fees associated with litigating the motion.  The court granted in part and deferred in part the motion.

The court rejected defendants’ argument that they could not be sanctioned because the spoliator, Mr. Barone, was not a party to the action.  The court stated that the argument lacked merit because it overlooked a party’s affirmative duty to preserve evidence.  The court stated the duty to preserve extends to evidence not directly within the party’s custody or control so long as the party has access to or indirect control over such evidence.  The court found:

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Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007)

In this employment litigation, defendant had asserted as an affirmative defense plaintiff’s failure to mitigate her damages.  During discovery, it was revealed that plaintiff owned a home computer from December 1995 until August 2004, which plaintiff had used to conduct her entire on-line job search after leaving defendant’s employ, including researching job opportunities on the Internet, submitting on-line employment applications, and exchanging emails with prospective employers.  Plaintiff also used the computer to send and receive emails regarding her termination and her claims of gender discrimination.  The computer was discarded approximately one year after plaintiff had retained regarding her prospective claims and after she filed her charge of discrimination with the EEOC. Plaintiff claimed that she discarded the computer because it "crashed.”  Plaintiff admitted that she never took the computer to any type of computer professional to see if it could be repaired.
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Univ. of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007)

In this case, the University of Pittsburgh alleged that defendants misappropriated the University’s rights and interests in valuable medical scanning technology that the University alleged was developed collaboratively at its campus over the course of several years.  In addition to Daubert motions, defendants moved the court for an excluding the testimony of plaintiff’s proposed experts based on spoliation of evidence.  Specifically, defendants alleged that the experts, along with plaintiff’s counsel, admittedly destroyed copies of emails and draft expert reports.  Defendants argued that, as a result of the spoliation, they were unfairly prejudiced and denied the opportunity to cross-examine the witnesses as to counsel’s contributions to their expert reports.
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In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. April 2, 2007)

In this securities class action, defendants resisted lead plaintiff’s motion to compel production of email and other non-privileged documents.  Defendants argued that restoring the backup tapes and searches involved would be extraordinarily burdensome and costly, and that such costs should be shifted to plaintiff.  The court observed that, “[s]urprisingly,” the parties had not entered into an agreed protocol for electronic discovery, nor had they discussed the issue of searching backup tapes.  It also found that, given the lack of discussion on the subject, it would be unreasonable for plaintiff to assume that backup tapes were being searched.
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Georgia Dept. of Agric. v. Griffin Ind., 2007 WL 805795 (Ga. Ct. App. Mar. 19, 2007)

In this case, Griffin Industries had sought records from the Georgia Department of Agriculture relating to its facilities’ emissions and odor issues, including relevant emails.  The Department produced documents, but advised that it did not “archive” its emails.  It stated that the only possible source of such information was a series of emergency computer backup tapes, which would be made available.  The parties then corresponded about taking the tapes out of daily backup circulation to avoid erasing data, and about who would pay for replacement tapes necessary to keep the Department’s backup procedures operational.
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