Case Summaries – Page 354 – Electronic Discovery Law

Happel v. Wal-Mart Stores, Inc., 2006 WL 642562 (N.D. Ill. Mar. 8, 2006)

Dec 01 2006

Key Insight: Where plaintiff alleged that Wal-Mart Pharmacy wrongly filled a prescription for a drug to which she was allergic, and that Wal-Mart’s computer system would have listed plaintiff’s drug allergies, flashed a warning and required further protocols before the drug could be dispensed to plaintiff, court granted motion to compel production of the computer used by the pharmacist (on August 4, 1993) and any reports or logs relating to the computer’s repair, maintenance or malfunction

Nature of Case: Personal injury

Electronic Data Involved: Computer used by particular Wal-Mart Pharmacy in 1993 and reports or logs relating to computer’s repair, maintenance or malfunction

Employers Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., 2006 WL 1120632 (E.D.N.Y. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court found that the computerized claim file was clearly relevant, irrespective of whether plaintiffs intended to use the documents or not in the litigation, and ordered plaintiffs to produce the complete claim file, including hard copies and electronic documents, to the extent such documents were not privileged or prepared for the sole purpose of “probable” or “imminent” litigation

Nature of Case: Insurance coverage

Electronic Data Involved: Electronic claim file

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged

Nature of Case: Misappropriation of funds

Electronic Data Involved: Accounting files on hard drive

A/R Roofing, L.L.C. v. Certainteed Corp., 2006 WL 2381610 (D. Kan. Aug. 16, 2006)

Dec 01 2006

Key Insight: Where the font used by plaintiff’s expert in his hard copy list of customer estimates and contracts was ?incredibly small? and difficult to read without magnification, thus rendering hard copy list inadequate, and because defendant’s request for production of material in electronic form was not otherwise prohibited by scheduling order, court granted defendant’s motion to compel the data in electronic format

Nature of Case: Plaintiff claimed loss of business resulting from letter sent by defendant

Electronic Data Involved: Customer list

Frees, Inc. v. McMillian, 2006 WL 2668843 (E.D. Tenn. Sept. 15, 2006)

Dec 01 2006

Key Insight: Court narrowed subpoena to defendant’s new employer, setting out “tiered discovery” process: plaintiff was to identify at least one project involving files allegedly removed from disputed laptop; new employer would then search for documents and/or files of the type described that were related to that project and produce them; if any of the produced documents and/or files were shown to be relevant or reasonably calculated to lead to the discovery of admissible evidence, then the parties would proceed to the ?second tier? of discovery and plaintiff could then request documents related to other projects; if no responsive documents could be found with respect to the first identified projects, however, plaintiff would be required to make a sufficient showing to the court as to why discovery should proceed further

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Proprietary business and technological data

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

Dec 01 2006

Key Insight: In follow up to earlier decision dismissing complaint as sanction for plaintiff’s discovery misconduct, court awarded defendant $35,000 in attorneys’ fees and full costs of $20,472 since forensic computer experts were “particularly necessary to uncover plaintiff’s skulduggery”

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006)

Dec 01 2006

Key Insight: Court directed defendants to confirm in writing whether it searched particular email accounts or conduct such search if it had not already done so; court further denied plaintiff’s request for spoliation sanctions based upon defendant’s alleged failure to preserve chat room comments since it was highly unlikely that any comments by members of the public that would be pertinent to the lawsuit would have been received, since chat room was opened after relevant time period and technology to save chat room comments was not installed until over a year later

Nature of Case: Trademark infringement

Electronic Data Involved: Chat room comments; email

Elion v. Jackson, 2006 WL 2583694 (D.D.C. Sept. 8, 2006)

Dec 01 2006

Key Insight: Where defendant did not produce a particular email in response to interrogatories or document requests and it only came to light during a deposition a few days before the close of all discovery, court granted plaintiff’s motion for sanctions under Rule 37(c)(1) and ordered that defendant be precluded from offering in evidence any and all documents not timely produced during discovery, including the subject email, and from offering the testimony of any witness with respect to the email or any other documents not timely disclosed

Electronic Data Involved: Email

Roberts v. Whitfill, 191 S.W.3d 348 (Tex. App. 2006)

Dec 01 2006

Key Insight: Reversing plaintiff’s $800,000 jury verdict on other grounds, state appellate court expressed concern about spoliation instruction given by trial court since plaintiff had not pursued motion to compel, there was doubt about the materiality and relevance of the data and how or if its absence seriously impaired plaintiff’s ability to present her case, defendant had provided an explanation for the data’s removal from his computer and had offered to produce at least some of the data in paper form or print specific reports, and spoliation instruction given appeared to be excessive based upon surrounding circumstances and spoliation instructions recently approved by Texas courts

Nature of Case: Former partner alleged antitrust violations, fraud and breach of fiduciary duty claims

Electronic Data Involved: QuickBooks data

Nichani v. United Tech. Corp., 2006 WL 1102761 (D. Conn. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel production of all documents prepared by four trial witnesses regarding accident investigation, as well as all email between or among them regarding the same matter, where discovery was closed and plaintiff had long known that four witnesses had potentially relevant information and plaintiff never followed up on general production requests nor sought discovery from witnesses directly; court further denied plaintiff’s alternative motion in limine precluding testimony of four individuals

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Catagory:Case Summaries