Case Summaries – Page 379 – Electronic Discovery Law

Despite Evidence of Intentional and Negligent Concealment, Bankruptcy Court Dismisses Trustee’s Spoliation of Evidence Counterclaims Because No Injury Was Shown

Dec 06 2005

In re Tri-State Armored Services, Inc., 332 B.R. 690 (Bankr. D.N.J. 2005)

Insurance company brought adversary proceeding against Chapter 7 trustee, seeking either equitable rescission of employee dishonesty, crime, and disappearance insurance policies issued to debtor armored car company, or declaratory judgment that coverage did not exist under the policies. The trustee asserted several counterclaims against the insurer and served discovery requests that sought the production of all documents, including emails related to the insurance policies and the trustee’s claims. The trustee thereafter filed a motion to compel and obtained an order directing the insurer to comply with the outstanding discovery requests. Still, the insurer produced no emails. Read More

Krausz Puente LLC v. Westall, 2005 WL 236862 (Cal. Ct. App. Jan. 25, 2005) (Unpublished)

Dec 01 2005

Key Insight: Trial judge did not err in imposing monetary sanctions and evidentiary sanction against individual defendant limiting the scope of his testimony, where defendant delayed for several days and deleted relevant computer files in violation of court’s order requiring defendant to “immediately make available to Plaintiff’s designated expert all computers, including hard drives and all other electronic storage media in [defendant’s] possession, custody and/or control”

Nature of Case: Breach of contract and fraud

Electronic Data Involved: 5,300 computer files

Barton v. U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005)

Dec 01 2005

Key Insight: Ninth circuit granted writ of mandamus reversing district court’s order compelling plaintiffs to produce their answers to law firm’s internet questionnaire; although questionnaire disclaimed any formation of an attorney-client relationship, it did not disclaim confidentiality, and, under California law, prospective clients’ communications with a view to obtaining legal services were covered by the attorney-client privilege

Nature of Case: Users of antidepressant sued manufacturer of drug

Electronic Data Involved: Law firm’s questionnaires regarding drug which were completed and submitted to the law firm on the internet

Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005)

Dec 01 2005

Key Insight: Court ordered plaintiff to produce all materials that plaintiff’s counsel furnished to plaintiff’s testifying expert, regardless of privilege or claimed work product protection, including emails, summaries, spreadsheets and draft expert reports

Nature of Case: Employer sought to enforce restrictive covenants against former employees

Electronic Data Involved: Emails, spreadsheets, draft expert reports

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2005 WL 4954351 (N.D. Ill. Feb. 11, 2005)

Dec 01 2005

Key Insight: Denying defendant’s motion for a new trial, court concluded that adverse inference jury instruction based upon defendant’s mistaken failure to suspend document retention policy that deleted email every 30 days was not misleading or unduly prejudicial

Nature of Case: Patent infringement

Electronic Data Involved: Email

Public Relations Soc’y of Am., Inc. v. Road Runner High Speed Online, 799 N.Y.S.2d 847 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Finding that individual had stated cognizable defamation claim against anonymous author of offending email, court denied email author?s application to vacate order requiring internet service provider to disclose email account information

Nature of Case: Defamation claim based on offending email message

Electronic Data Involved: Email author identity

Jinks-Umstead v. England, 232 F.R.D. 142 (D.D.C. 2005)

Dec 01 2005

Key Insight: Court denied plaintiff’s motion to reject defendant’s attorney-client privilege and work product claims, finding that crime/fraud exception did not apply, that defendant had not waived privilege, and that plaintiff had not demonstrated a substantial need for the material; court also noted that defendant had previously been sanctioned for the discovery conduct complained of and that it would be inappropriate to sanction defendant again for the very same conduct

Nature of Case: Employment discrimination

Electronic Data Involved: Drafts of discovery responses and email claimed to be privileged

Larson v. Bank One Corp., 2005 WL 4652509 (N.D. Ill. Aug. 18, 2005)

Dec 01 2005

Key Insight: Where defendant breached its duty to preserve by failing to establish a “comprehensive document retention policy” and by failing to properly disseminate the policy to its employees, and conduct evinced ?extraordinarily poor judgment? and ?gross negligence” but not willfulness or bad faith, magistrate recommended that prejudice to plaintiff could be remedied by precluding defendant from cross-examining plaintiff’s financial expert and by instructing the jury about the sanction

Nature of Case: Securities class action

Electronic Data Involved: Underlying data and calculations

BG Real Estate Servs., Inc. v. Am. Equity Ins. Co., 2005 WL 1309048 (E.D. La. May 18, 2005)

Dec 01 2005

Key Insight: Request for production of “computer hard drive” was overly broad and responding party need not produce entire hard drive; however, to the extent that hard drive contained non-privileged items that were responsive to other requests as to which responding party’s objections were not sustained, such items should be produced

Nature of Case: Insurance coverage and unauthorized settlement

Electronic Data Involved: Hard drive

McDougal-Wilson v. Goodyear Tire & Rubber Co., 232 F.R.D. 246 (E.D.N.C. 2005)

Dec 01 2005

Key Insight: Court denied plaintiff’s motion to compel defendant to produce (among other things) computer generated employee profiles of all its employees in North Carolina from 1995 to the present, finding that producing records of over 1,000 employees who were not similarly situated to plaintiff would be unduly burdensome and oppressive and was unlikely to lead to the discovery of admissible evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Computer generated employee profiles

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