Electronic Discovery Law – Page 253 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Eli Lilly & Co. v. Wockhardt Ltd., 2010 WL 2605855 (S.D. Ind. June 22, 2010)

Dec 01 2010

Key Insight: Where plaintiff had produced millions of pages organized as maintained in the usual course of business, court denied defendant?s motion to compel plaintiff to precisely match the documents produced with the request to which they responded, but, citing plaintiff?s ?demonstrated ample resources?, ordered plaintiff to ?generally match up its documents with defendant?s requests by letter, chart, or some form of index? within 14 days; court declined to compel production of metadata that did not exist and ?OCR information? but ordered plaintiff to provide ?custodian information? as to those documents which lacked it

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Jicarilla Apache Nation v. United States, 93 Fed. Cl. 219 (Fed. Cl. 2010)

Dec 01 2010

Key Insight: Pursuant to Fed. R. Evid. 502(d), court entered protective order controlling the scope and production format of ESI as well as establishing that inadvertent disclosure would not result in the waiver of attorney-client privilege or work-product protection and establishing a protocol for how to notify opposing counsel of inadvertent production and counsel?s appropriate response

Nature of Case: Tribal trust case

Electronic Data Involved: ESI

Roberts v. City of Phoenix, 235 P.3d 265 (Ariz. Ct. App. 2010)

Dec 01 2010

Key Insight: Where the trial court concluded that defendant committed discovery violations in bad faith, including failing to timely produce responsive information, withholding responsive information even after a court order to produce, failing to provide an explanation for the failure to produce certain responsive information, producing certain documents only after being presented with evidence of their existence by plaintiff, and purging responsive documents from relevant files during the pendency of litigation, and where a lesser sanctions were properly considered, appellate court found ?reasonable grounds supporting the court?s decision? and affirmed the sanction of default judgment

Nature of Case: Violation of civil rights, selective enforcement of the law, failure to supervise, and related claims

Electronic Data Involved: Emails, hard copy

Sanofi-Aventis Deutschland GMBH v. Glenmark Pharm. Inc., USA, 2010 WL 2652412 (D.N.J. July 1, 2010)

Dec 01 2010

Key Insight: Court declined to find spoliation had occurred as to specific emails believed by plaintiff to have been withheld or destroyed by defendant absent sufficient evidence but, relying on defendant?s claims of work-product immunity as to a document created in Feb. 2006, found that defendant anticipated litigation as of that time and imposed an adverse inference as to any documents systematically destroyed after that date pursuant to defendant?s policy of maintaining electronic documents for only one month

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Language Line Servs., Inc. v. Language Servs. Assocs., LLC, 2010 WL 2764714 (N.D. Cal. July 13, 2010)

Dec 01 2010

Key Insight: Upon plaintiff?s showing of a likelihood of success in its claims and a possibility of irreparable harm absent judicial intervention, the court granted plaintiff?s motion for a preliminary injunction precluding defendants from using, copying or divulging plaintiff?s confidential information and from destroying or erasing such information, among other things; upon the parties? agreement, the court also appointed a Special Master to preside over all proceedings regarding the preservation of plaintiff?s information in the possession of defendants, the forensic imaging of defendant?s computer systems and servers to determine the extent of plaintiff?s information in their possession, and defendant?s communications with any of plaintiff?s customers appearing in the alleged confidential information

Nature of Case: Misappropriation of Trade Secrets and related claims

Electronic Data Involved: ESI

Univ. Sports Publ?ns Co. v. Playmakers Media Co., 2010 WL 2802322 (S.D.N.Y. July 14, 2010)

Dec 01 2010

Key Insight: Where the issue before the court was whether defendant had intentionally accessed plaintiff?s database without authorization, court relied on an adverse inference arising from defendant?s intentional destruction of a laptop which would have provided key evidence and held that a genuine issue of material fact existed such that summary judgment was not appropriate

Nature of Case: Alleged violations of Computer Fraud and Abuse Act

Electronic Data Involved: Laptop

Linde v. Arab Bank, PLC, 269 F.R.D. 186 (E.D.N.Y. 2010)

Dec 01 2010

Key Insight: For ?defendant?s recalcitrance in meeting its discovery obligations?, namely refusing to produce certain discovery on the basis of foreign secrecy laws (a justification previously rejected by the court), the court imposed severe sanctions, including adverse inference instructions and an order precluding the presentation of certain evidence

Nature of Case: Knowingly and purposefully aiding and abetting terrorists and terrorist organizations

Electronic Data Involved: Foreign banking information

Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010)

Dec 01 2010

Key Insight: In divorce proceedings, court denied wife?s motion for access to husband?s office hard drive where wife was not entitled to ?unrestricted turnover? of the drive and failed to propose a discover/issue resolution protocol to allow for the protection of privileged and private material but allowed for possible renewal of the motion, which must contain a proper discovery protocol, and provided specific instruction for the proper content of the same

Nature of Case: Matrimonial action/divorce

Electronic Data Involved: Husband’s office hard drive

Shanahan v. Superior Court, 2010 WL 2840254 (Cal. Ct. App. July 21, 2010)

Dec 01 2010

Key Insight: Court ruled against waiver as to privileged documents sent from and stored on deceased employee?s work computer where the employee had a reasonable expectation of privacy under the ?unusual circumstances? presented, including that the employee believed he was permitted to communicate with his attorney via his computer because the attorney was paid for by the company for the purpose of negotiating employee?s employment agreement and because of the failure of the employer?s use policy to expressly negate the expectation of privacy by failing to specifically reference waiver of attorney-client privilege, among other reasons; court also ruled that dissemination of a draft memo to the employee?s secretary did not waive privilege where the secretary was assigned to the employee, frequently edited and printed documents for the employee, and understood that such documents were to be kept confidential

Nature of Case: As executor, widow sued husband’s employer for breach of compensation agreement

Electronic Data Involved: Privileged emails, ESI

Booker v. Mass. Dept. of Public Health, 612 F.3d 34 (1st Cir. 2010)

Dec 01 2010

Key Insight: Trial court did not err in failing to issue an adverse inference instruction where plaintiff failed to establish the evidentiary foundation for such an instruction, namely that the party accused of spoliation was 1) aware of the pending claim, and 2) aware of the document?s relevance to that claim

Nature of Case: Retaliation, torotuous interference with contractual employment relations

Electronic Data Involved: Emails