Electronic Discovery Law – Page 247 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010)

Dec 01 2010

Key Insight: Citing plaintiff?s failure to raise the issue of electronic discovery at the discovery conference, her failure to request ESI in discovery, and the lack of hardship in reviewing hard copy produced by defendants, the court generally denied plaintiff?s request to compel production of ESI in native format but, as to an evaluation of plaintiff, the court compelled the production of metadata and reasoned that the revelation of the date created and whether it was modified could be pivotal for the plaintiff

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

Dec 01 2010

Key Insight: Where the original computer seized from defendant was ?destroyed as the result of a miscommunication between divisions of the federal government? (computer was destroyed by the Asset Forfeiture Division working independently of the attorneys handling the criminal case), the District Court did not err in finding that the computer was not destroyed in bad faith and that such destruction did not violate the defendant?s due process rights

Nature of Case: Possession and receipt of child pornography

Electronic Data Involved: Computer/hard drive seized as evidence

Prins v. Dir. of Revenue, 333 S.W.3d 17 (Mo. Ct. App. 2010)

Dec 01 2010

Key Insight: Where the trial court granted spoliation sanctions despite failing to find that the loss was intentional or in bad faith (where the officer failed to preserve the relevant video footage as the result of failing to mark the right ?checkbox? in the system) and where Missouri law requires ?evidence of intentional destruction? or ?evidence that the spoliator destroyed the evidence ?under circumstances manifesting fraud, deceit, or bad faith?, the appellate court reversed the judgment of the trial court and remanded for a new hearing

Nature of Case: DUI

Electronic Data Involved: Video footage of defendant’s stop and arrest

Kmart Corp. v. Footstar, Inc., 2010 WL 4512337 (N.D. Ill. Nov. 2, 2010)

Dec 01 2010

Key Insight: Court found the producing party did not take reasonable steps to prevent disclosure and that privilege was therefore waived as to inadvertently produced privileged documents where the number of documents requiring review prior to production was low in light of the public nature of most documents produced at the same time as the inadvertently produced documents, where the alleged time constraints for the relevant review were ?self-imposed? by the producing party, and where despite representations that the materials were reviewed by an attorney who was looking for privileged materials, insufficient facts were offered in support of that contention

Nature of Case: Plaintiff sought indemnification for underlying personal injury suit

Electronic Data Involved: ESI

United States v. Wright, 625 F.3d 583 (9th Cir. 2010)

Dec 01 2010

Key Insight: Court reasoned that the Adam Walsh Act?s requirement that defendant have ?ample access? to examine child pornography evidence did not mean ?equal access? and ruled that where defendant?s expert was given access to the evidence under certain conditions (including time and place restrictions) but not provided with a mirror image of the drive to examine at will and where the expert was expressly ?comfortable? with that arrangement and was afforded 14 months to examine the evidence, ?ample access? was provided

Nature of Case: Child Pornography

Electronic Data Involved: Hard drive containing the pornographic images

State v. Absher, 2010 WL 3860501 (N.C. App. Ct. Oct. 5, 2010)

Dec 01 2010

Key Insight: Where police department failed to preserve video surveillance footage containing images of the alleged assault at issue despite a specific written request for preservation by defendants? counsel and instead altered the tape to remove significant portions and then destroyed the original, superior court did not err in dismissing the charges against defendants because of the irreparable prejudice caused by the loss of the video tape

Nature of Case: Criminal/Assault

Electronic Data Involved: Video surveillance footage

In re Urethane Antitrust Litig., 2010 WL 4226214 (D. Kan. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where plaintiffs sought a protective order to preclude discovery of a certain category of information, court denied their motion for a myriad of reasons, including rejecting arguments of undue burden and expense where the arguments were ?largely conclusory and unsupported? and where plaintiffs evidence actually established that the discovery could be reasonably undertaken as the result of work done while responding to other requests and reasoned that while responding would ?take time?, it would not be an ?inordinate? amount

Nature of Case: Price fixing, market-allocation conspiracies

Electronic Data Involved: ESI related to criminal investigation of some plaintiffs

Oto Software, Inc. v. Highwall Techs., LLC, 2010 WL 3842434 (D. Colo. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion for sanctions where defendant Highwall breached its obligation to preserve information related to the underlying royalty dispute following receipt of a letter which triggered the duty to preserve and ordered that discovery be re-opened and that defendant Highwall bear the costs but also found that the duty to preserve documents related to the development of allegedly infringing software was not triggered until the filing of the complaint and that no spoliation had occurred; court found purchaser of Highwall?s assets during pendency of the royalty dispute had no duty to preserve where the software at issue was excluded from purchaser?s acquisition

Nature of Case: Royalty dispute, copyright infringement

Electronic Data Involved: ESI

Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519 (Mo. App. Ct. 2010)

Dec 01 2010

Key Insight: Where trial court ordered a single plaintiff to produce all information in his possession or control that had been posted to a relevant web forum and where that plaintiff complied in part but withheld information that could have uniquely identified users and unposted private messages, the trial court abused its discretion in striking all plaintiffs? pleadings and dismissing their claims as a sanction for discovery violations where the request for discovery was overly broad in the first place and where the sanction imposed for failing to respond to such an overly broad request was ?unjust?

Nature of Case: Claims arising from city’s approval of development of property

Electronic Data Involved: ESI posted to website and electronic forum

Reckitt Benckiser, Inc. v. Watson Labs., Inc.-Florida, 2010 WL 4225865 (S.D. Fla. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where defendant ?unilaterally deviated? from the parties? agreement to produce in TIFF format and argued that the cost of conversion was not justified because the documents were ?minimally responsive?, court upheld the agreement and ordered the defendant to re-produce 19,000 documents that had been produced in native format

Nature of Case: Patent infringement

Electronic Data Involved: ESI