Case Summaries – Page 364 – Electronic Discovery Law

Washburn v. Lavoie, 437 F.3d 84 (D.C. Cir. 2006)

Dec 01 2006

Key Insight: Magistrate did not err in refusing to order defendants to produce all emails that mentioned plaintiff or plaintiff’s lawsuit, where magistrate did order defendants to produce the emails for in camera inspection and magistrate’s personal review showed that nearly half were devoid of anything bearing upon the litigation and the other half dealt with irrelevant issues such as the costs of litigation, retention of counsel and the need to answer interrogatories

Nature of Case: Defamation

Electronic Data Involved: Email

Smoliak v. Greyhound Lines Inc., 2006 WL 1029643 (N.D. Fla. Apr. 19, 2006)

Dec 01 2006

Key Insight: Magistrate issued Certification of Facts for a Finding of Contempt relating to conduct of non-party Brett Cormier, a relative and employer of plaintiff who had consistently failed to comply with discovery orders or produce salary and employment records; court had previously stated: “The Court is still reluctant to order an inspection of Cormier’s computer, at his expense, to obtain this information since it seems an extreme, expensive, and unnecessarily invasive process to obtain what should be relatively easy information about Plaintiff’s income. However, Cormier must be more cooperative in producing the limited information requested of him or the Court may be left with no other option. . . . Work history and salary information is simple, straightforward information that every reputable business maintains in a variety of easily retrievable formats, and the Court simply does not accept the representations heretofore made for why Brett Cormier cannot locate this information. This issue is getting tiresome and has occupied far too much of this Court’s time and energy.”

Nature of Case: Personal injury

Electronic Data Involved: Salary and employment information

Lighthouse Community Church of God v. City of Southfield, 2006 WL 1662615 (E.D. Mich. June 12, 2006)

Dec 01 2006

Key Insight: Denying plaintiff’s request to inspect defendant’s computer system, court ordered defendant to produce all emails in its possession or control that were responsive to particular request for production, or provide a privilege log as to any emails claimed to be privileged; court warned defendants that failure to comply with the order could result in the imposition of “the most drastic sanctions permissible under Rule 37(b)(2), including striking their pleadings, entry of default judgment, and contempt of court sanctions”

Nature of Case: Following city’s issuance of citation for church’s use of building without certificate of occupancy, church asserted various constitutional claims

Electronic Data Involved: Email

z4 Techs., Inc. v. Microsoft Corp., 2006 WL 2401099, *18 (E.D. Tex. Aug. 18, 2006)

Dec 01 2006

Key Insight: On defendants’ motion for a new trial, court concluded that jury was properly instructed that it could make an adverse inference against Microsoft with regard to relevant email that was not produced until the day before trial

Nature of Case: Patent infringement

Electronic Data Involved: Email

Plasse v. Tyco Elecs. Corp., 448 F. Supp. 2d 302 (D. Mass. 2006)

Dec 01 2006

Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees

Nature of Case: Wrongful termination

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

MacNamara v. City of New York, 2006 WL 3298911 (S.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court ordered production of handwritten worksheets used to compile database in light of demonstrated data entry errors that made accuracy of database printouts suspect; court also sustained objection to request for “all electronic data concerning RNC arrests” as impermissibly vague

Nature of Case: Litigation arising from arrests during 2004 Republican National Convention

Electronic Data Involved: Worksheets underlying database

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

Kemper Mortgage, Inc. v. Russell, 2006 WL 4968120 (S.D. Ohio May 4, 2006)

Dec 01 2006

Key Insight: Where plaintiff presented convincing evidence at preliminary injunction hearing of defendant’s intentional spoliation of evidence, including his installation of file ?shredder? program on laptop computer the day before litigation was filed and under threat of its commencement, court allowed inference that that considerably more evidence of misconduct would have been found without the spoliation and granted preliminary injunction barring defendant from, among other things, destroying or deleting relevant ESI

Nature of Case: Breach of employment agreement

Electronic Data Involved: Laptop computer

Plaintiff’s Efforts to Preserve and Produce Email and Electronic Records Were Untimely and Inadequate; Court Invites Motion for Sanctions

Nov 27 2006

Reino de Espana v. Am. Bureau of Shipping, 2006 WL 3208579 (S.D.N.Y. Nov. 3, 2006)

This litigation arose from the casualty of the Prestige off the coast of Spain in November 2002, which caused a large oil spill. In this opinion, the court granted defendant ABS’s motion to compel the production of email and other electronic records prepared by various governmental agencies that were involved in the response to and investigation of the spill. In addition, the court invited ABS to seek sanctions for Spain’s apparent failure to preserve relevant evidence.
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Court Orders Production of Handwritten Worksheets Underlying Database, in Light of Demonstrated Data Entry Errors

Nov 27 2006

MacNamara v. City of New York, 2006 WL 3298911 (S.D.N.Y. Nov 13, 2006)

This case is one of many arising from the arrests of approximately 1,800 people during the Republican National Convention (“RNC”) in New York City in the summer of 2004. This decision addressed plaintiffs’ motion to compel the city to produce certain documents and electronically stored information. Among other rulings, the court granted plaintiffs’ request for production of certain arrest worksheets used in connection with the city’s Online Booking System ("OLBS"). The OLBS worksheets contained handwritten information regarding the arresting or assigned officer’s recollection of the events that preceded the arrest. The information on the worksheet is subsequently entered into the OLBS, often by someone other than the officer who filled out the worksheet. The city argued that the plaintiffs’ request for OLBS worksheets for non-party arrestees was duplicative, since the information sought could be found in database printouts the city had already agreed to produce. However, plaintiffs contended that “significant errors, edits and omissions” occur at the data entry stage, and that the information contained in the handwritten worksheets sought may therefore differ from that in the database printouts, which contained only the information actually entered into the OLBS. The court found that an example cited by plaintiffs supported their contention, and ordered production of the worksheets subject to an "attorneys’-eyes-only" designation.

Ruling on a separate request, the court sustained the city’s objection to plaintiffs’ request for "[a]ll electronic data concerning RNC arrests" maintained by various entities, finding it to be impermissibly vague.

Catagory:Case Summaries