Case Summaries – Page 409 – Electronic Discovery Law

Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio 1996)

Dec 01 2004

Key Insight: Requiring insurer to create programs to retrieve and put in usable form information from its databases at its own expense, court stated: “[A] party cannot avoid discovery when its own recordkeeping system makes discovery burdensome. If a party chooses to store information in a manner that tends to conceal rather than reveal, that party bears the burden of putting the information in a format useable by others.” However, court did order that request for computer-generated reports be narrowed.

Nature of Case: Minority homeowners brought civil rights action alleging that insurer engaged in redlining to avoid minority neighborhoods

Electronic Data Involved: Insurer’s databases and computer-generated reports

In re Verisign, Inc. Sec. Litig., 2004 WL 2445243 (N.D. Cal. Mar. 10, 2004)

Dec 01 2004

Key Insight: District court upheld magistrate’s order requiring defendants to produce all responsive electronic information in native format

Nature of Case: Securities class action

Electronic Data Involved: Emails

Youle v. Ryan, 811 N.E.2d 1281 (Ill. App. Ct. 2004)

Dec 01 2004

Key Insight: Order compelling defendant surgeon to produce his surgical database, to include information related to all the cholecystectomy procedures defendant had ever performed (with the patient names redacted) was abuse of discretion; matter remanded with directions that the court examine the database contents in camera to determine relevance and privilege issues

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical database maintained by defendant surgeon

Polito v. AOL Time Warner, Inc., 2004 WL 3768897 (Pa. Ct. Com. Pl. Jan. 28, 2004)

Dec 01 2004

Key Insight: Court ordered AOL to reveal the identities of its anonymous subscribers who had transmitted offensive emails and instant messages where plaintiff had established that: (1) she had a prima facie basis for asserting criminal or civil liability against the anonymous authors; (2) the identifying information was relevant to her claims and necessary to obtain redress; (3) she was seeking the information in good faith and not for an improper purpose; and (4) she was unable to obtain the identifying information by alternative means

Nature of Case: Individual sued ISP seeking disclosure of identities of subscribers who sent her offensive email and instant messages

Electronic Data Involved: Identities of subscribers

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2004 WL 417193 (N.D. Ill. Jan. 30, 2004)

Dec 01 2004

Key Insight: Motion for sanctions for destruction of email denied since plaintiff failed to follow procedure set forth in court’s prior order which would have required plaintiff to file a petition seeking the appointment of a computer forensics expert, and instead waited over seven months to bring the issue to the court in the form of a motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Deleted email

Brick v. HSBC Bank USA, 2004 WL 1811430 (W.D.N.Y. Aug. 11, 2004)

Dec 01 2004

Key Insight: District Court affirmed sanctions award of $147,635.74 imposed by Bankruptcy Court under its inherent powers on law firm representing estate, where among other things, law firm “got caught time and time again with having made misrepresentations about the completeness of what was provided,” even after the evidence indicated otherwise and after additional documents continued to be found

Nature of Case: Bankruptcy proceeding

Electronic Data Involved: Email and documents in electronic format

Computer Assoc. Int?l v. Am. Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990)

Dec 01 2004

Key Insight: Defendant’s duty to preserve source code arose no later than service of complaint, and its subsequent destruction of source code warranted default judgment on issue of liability; even assuming that maintenance of only a single, updated version of source code was, in other circumstances, a bona fide business practice, any destruction of versions of the code after service of complaint could not be excused as a bona fide business practice

Nature of Case: Copyright infringement, unfair competition, breach of computer software agreement

Electronic Data Involved: Source code

Farmers Ins. Co., Inc. v. Peterson, 81 P.3d 659 (Okl. 2003)

Dec 01 2004

Key Insight: Writ of prohibition issued, vacating lower court’s order requiring defendant to search all of its electronic and hard copy claim files covering three-year period; court suggested alternate approach using statistical sampling technique, but left the particulars of such sampling to parties to litigate in lower court

Nature of Case: Insurance bad faith

Electronic Data Involved: Electronic claim files covering three-year period

Grill v. Costco Wholesale Corp., 2004 WL 2314640 (W.D. Wash. Oct. 7, 2004)

Dec 01 2004

Key Insight: Finding that work product protection did not apply to contested emails, court ordered their production

Nature of Case: Disabled individual alleged violations of ADA

Electronic Data Involved: Email between plaintiff and third party

Jackson v. Microsoft Corp., 211 F.R.D. 423 (W.D. Wash. 2002)

Dec 01 2004

Key Insight: Plaintiff’s misconduct and discovery abuse (including obtaining email and proprietary information of employer, paying for such material, copying and using material to prepare case, and engaging in elaborate series of lies during depositions and evidentiary hearings re same) warranted dismissal with prejudice

Nature of Case: Employment discrimination

Electronic Data Involved: CDs and laptop computer hard drive

Catagory:Case Summaries