Case Summaries – Page 383 – Electronic Discovery Law

United States v. Arthur Andersen, LLP, 374 F.3d 281 (5th Cir. 2004), rev’d, 125 S.Ct. 2129 (2005)

Dec 01 2005

Key Insight: Conviction of Arthur Anderson for obstructing an official proceeding of the SEC affirmed; conviction was based on government’s allegations that, in order to protect the firm and the firm’s largest single account (Enron), Anderson ordered a mass destruction of documents to keep them from the hands of the SEC; Anderson unsuccessfully attempted to cloak the destruction of documents under the auspices of its document retention policies

Nature of Case: Criminal charge of obstructing an official proceeding of the SEC

Electronic Data Involved: Email and hard copy documents

Pamlab, L.L.C. v. Rite Aid Corp., 2005 WL 589573 (E.D. La. Mar. 3, 2005)

Dec 01 2005

Key Insight: Court modified Rule 30(b)(6) notice of deposition and ordered defendant to produce a representative to testify concerning various matters, including defendant’s document destruction and retention policies for paper and electronic information, and what information sought in particular interrogatory could be retrieved from computer system and what could only be retrieved manually

Nature of Case: Drug company claimed drug store chain improperly substituted one drug for another

Electronic Data Involved: Computer databases

Okoumou v. Safe Horizon, 2005 WL 2431674 (S.D.N.Y. Sept. 30, 2005)

Dec 01 2005

Key Insight: Although plaintiff was free to pursue discovery of archived emails on obsolete email system, the extent to which those emails were discoverable and the allocation of costs to restore them would require further analysis; court directed plaintiff to notify the court if she intended to pursue the archived email

Nature of Case: Wrongful termination

Electronic Data Involved: Archived email from obsolete email system

Procter & Gamble Co. v. Haugen, 2003 WL 22080734 (D. Utah Aug. 19, 2003), aff’d in part, rev’d in part, and remanded, 427 F.3d 727 (10th Cir. 2005)

Dec 01 2005

Key Insight: Court granted defendants’ motion for sanctions and dismissed case with prejudice because, among other things, plaintiffs had failed to preserve relevant electronic data that plaintiffs knew were critical, and it would be impossible for defendants to defend the case without the electronic data that was not produced and no longer available

Nature of Case: Business sued competitors for defamation and unfair competition

Electronic Data Involved: Electronic data

Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485 (4th Cir. 2005)

Dec 01 2005

Key Insight: Court imposed sanctions and allowed plaintiff to question defendant’s witnesses before the jury regarding its failure to disclose documents immediately, where plaintiff learned through depositions that a tape recording, the complete underwriting and claims file, and other electronic information had not yet been produced

Nature of Case: Insurance coverage

Electronic Data Involved: Tape recording and electronic information

Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee

Nature of Case: Divorce proceeding

Electronic Data Involved: Data on hard drives

Steadfast Ins. Co. v. Purdue Frederick Co., 2005 WL 3511085 (Conn. Super. Ct. Nov. 30, 2005) (Unpublished)

Dec 01 2005

Key Insight: Deciding there should be a presumption in favor of finding inadvertence, court denied plaintiff’s motion to compel production of privileged documents “recalled” by defendant under stipulated inadvertent production provision; court further advised that (1) production of documents without any privilege review whatsoever is not an inadvertent, but rather a purposeful, act unless the parties had an agreement otherwise; and (2) the purpose of the parties’ inadvertent production provision was not to allow the producing party to consciously change its mind post-production about whether or not to claim the privilege

Nature of Case: Insurance coverage

Electronic Data Involved: Privileged email

Galvin v. Gillette Co., 2005 WL 1155253 (Mass. Super. Apr. 28, 2005)

Dec 01 2005

Key Insight: Where much of the material sought did not appear to touch on or be relevant to the matter under investigation by the Secretary, i.e., whether fraud may be present in the UBS or Goldman, Sachs fairness opinions based on information provided by Gillette, court quashed broad subpoena issued to Gillette without prejudice to the Secretary issuing a new subpoena more narrowly drafted

Nature of Case: Secretary of the Commonwealth of Massachusetts issued subpoena under state securities act in connection with pending merger

Electronic Data Involved: Email

United States v. Mallinckrodt, Inc., 227 F.R.D. 295 (E.D. Mo. 2005)

Dec 01 2005

Key Insight: Inadvertent disclosure of government’s privileged litigation report by copying report onto CD-ROMs produced to over 50 defense attorneys did not effect waiver of attorney-client privilege where (1) government took reasonable precautions to prevent inadvertent disclosure by segregating privileged documents in extensive privilege review of more than 61,000 pages, (2) only one privileged document was inadvertently produced, (3) government acted promptly by alerting all counsel of inadvertent production within one month after learning of the disclosure, and (4) the interest of justice favored relieving the government of its error

Nature of Case: Environmental litigation

Electronic Data Involved: CD-ROM

Burgess v. Goord, 2005 WL 1458236 (N.D.N.Y. June 15, 2005)

Dec 01 2005

Key Insight: Court denied inmate’s request to preserve videotapes allegedly showing he was denied food trays because they were irrelevant to inmate’s claims; complaint alleged that he was denied medical treatment and should be transferred to another facility, not that he was denied food trays

Nature of Case: Inmate sought injunctive relief transferring him to a different facility

Electronic Data Involved: Videotape

Catagory:Case Summaries