Case Summaries – Page 399 – Electronic Discovery Law

Hentsch Henchoz & Cie v. Gubbay, 97 P.3d 1283 (Utah 2004)

Dec 01 2004

Key Insight: Where defendant shipped all of its documents, records, and computer hard drives from Utah to Spain in defiance of trial court’s orders requiring defendant to comply with discovery requests, and trial court granted summary judgment in favor of plaintiff, Supreme Court of Utah held that defendant?s appeal of the summary judgment ruling could be dismissed by appellate court based upon defendant?s contumacious conduct, but Supreme Court would first allow defendant an opportunity to bring itself into compliance with trial court?s orders within 30 days, including those orders requiring defendant to comply with discovery and to return all requested documents and evidence to Utah

Nature of Case: Investor sued financial services company for fraud, conspiracy, breach of contract

Electronic Data Involved: Computer hard drives

Katt v. Titan Acquisitions, Inc., 244 F. Supp. 2d 841 (M.D. Tenn. 2003)

Dec 01 2004

Key Insight: Despite dismissal of all plaintiffs’ claims and entry of final judgment on the merits, court retained ancillary jurisdiction over plaintiffs’ motion for sanctions for spoliation of electronic evidence for purpose of holding a hearing before ruling on the motion

Nature of Case: Securities class action

Electronic Data Involved: Electronic evidence

Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)

Dec 01 2004

Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it

Nature of Case: Drug products liability

Electronic Data Involved: Discoverable information in paper or electronic format

Nicholas v. Windham Int’l, Inc., 373 F.3d 537 (4th Cir. 2004)

Dec 01 2004

Key Insight: No abuse of discretion to deny enforcement of subpoena directed to plaintiffs’ nonparty company where defendants had already deposed plaintiffs and conceded that the company would have no additional information, plaintiffs would be designated Rule 30(b)(6) witnesses if discovery were allowed, and plaintiffs had already produced email from their business accounts and remained under a continuing obligation to supplement their earlier productions

Nature of Case: Ancillary proceeding to enforce subpoena

Electronic Data Involved: Email

SEC v. Beacon Hill Asset Mgmt. LLC, 231 F.R.D. 134 (S.D.N.Y. 2004)

Dec 01 2004

Key Insight: Granting motion to compel contact list printed out from defendant’s contact management software program which was not timely included on defendant’s privilege log, court rejected “frivolous” argument that the contact list technically did not exist until it was printed: “For more than thirty years, Fed.R.Civ . P. 34(a) has included data stored on electronic media as being subject to a Rule 34 request. The fact that the data has not been printed out does not mean that the document does not exist. Indeed, if BH’s argument were meritorious, any party could avoid producing damaging documents through the simple expedient of storing them on electronic media and never printing them out.”

Nature of Case: SEC enforcement action

Electronic Data Involved: Email, spreadsheets and contact list

Stricklen v. Fed. Aviation Admin., 32 F.3d 572 (Table, Text in WESTLAW), 1994 WL 390001 (9th Cir. 1994) (Unpublished)

Dec 01 2004

Key Insight: Negative inference not warranted in NTSB board proceeding where computer tapes containing radar data were destroyed pursuant to FAA policy and without notice that pilot would raise issue of near-miss

Nature of Case: Petition for review of order of NTSB revoking pilot’s airline transport certificate

Electronic Data Involved: Tapes containing radar data

United States v. IBM, 76 F.R.D. 97 (S.D.N.Y. 1977)

Dec 01 2004

Key Insight: Defendant required to produce computerized information; conduct of defendant and technical and complex nature of production warranted appointment of examiner pursuant to Fed. R. Civ. P. 53 to report to the court what materials the defendant possesses and whether defendant produced such material

Nature of Case: Antitrust

Electronic Data Involved: Tapes, files, programs, reports, input and output files

Williams v. DuPont, 119 F.R.D. 648 (W.D. Ky. 1987)

Dec 01 2004

Key Insight: Employer entitled to discover, at its own expense, copies of database on computer disk, code books and user manual created by EEOC’s expert from information produced by employer to allow for effective cross-examination of EEOC’s expert; in addition, employer to pay “fair portion of the fees and expenses incurred” in the past by EEOC for the expert’s work in encoding the requested data and formulating the database

Nature of Case: Consolidated Title VII action brought by individual and EEOC

Electronic Data Involved: Database created by EEOC’s expert from information produced by employer

Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27 (D.D.C. 2004)

Dec 01 2004

Key Insight: Since defendant had destroyed electronic records and failed to produce the very records that would provide evidence of its contacts within D.C., even after being ordered by court to do so, court denied defendant’s motion to dismiss for lack of personal jurisdiction; court declined to impose any sanctions, but said plaintiff could bring a motion in the future

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Electronic information on servers

Century ML-Cable Corp. v. Carrillo, 43 F. Supp. 2d 176 (D.P.R. 1998)

Dec 01 2004

Key Insight: Default judgment entered against defendant and attorneys’ fees awarded to plaintiff, pursuant to Fed. R. Civ. P. 37, for defendant’s willful and intentional destruction of laptop presumably containing crucial evidence of defendant’s decoder key modification programs, sale records and customer lists

Nature of Case: Cable TV provider sued businessman for cable TV theft

Electronic Data Involved: Laptop

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