Electronic Discovery Law – Page 254 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Board of Trs. Sheet Metal Workers Nat?l Pension Fund v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845 (E.D. Mich. 2010)

Dec 01 2010

Key Insight: Considering the large volume of materials produced, defendants? efforts to review materials prior to their production (including using 16 review associates supervised by two senior associates), and the complicated nature of certain privilege issues (including the number of law firms implicated in the relevant correspondence), court found no waiver of privilege resulting from the inadvertent production of 184 documents and denied plaintiffs? motion for an order invalidating defendant?s claims of privilege

Nature of Case: Claims arising under the Employment Retirement Income Security Act of 1974 (ERISA)

Electronic Data Involved: Privileged ESI

Moore v. Napolitano, 723 F. Supp. 2d 167 (D.D.C. 2010)

Dec 01 2010

Key Insight: District court upheld sanction precluding defendant from presenting evidence of non-discriminatory reasons for non-promotion upon a prima facie showing of disparate treatment where defendant failed to conduct a reasonable search for responsive paper documents, despite a court order to do so, including providing ?ambiguous and deficient? search instructions to employees; failing to follow up when employees failed to uncover responsive information; and failing to credibly explain defendant?s search efforts, and where the Magistrate Judge properly concluded the sanction was proportional to the offense(s)

Nature of Case: Putative class action for discriminatory non-promotion

Electronic Data Involved: Hard copy

Amerisource Corp. v. RX USA Int?l, Inc., 2010 WL 2730748 (E.D.N.Y. July 6, 2010)

Dec 01 2010

Key Insight: Where a non-party principal of defendant fabricated emails, used those emails to support defendant?s claim, and testified to their authenticity during the course of litigation, the court sanctioned the non-party and defendant and found them jointly and severally liable for payment of $100,000 – half to be paid to plaintiff and half to be paid to the clerk of the court; to sanction non-party, court reasoned that as ?the majority shareholder, chief executive, and only person affiliated with [defendant] to have a substantive role in this litigation?, ?[the principal] is RxUSA? and relied upon its inherent authority to sanction him for litigation misconduct

Nature of Case: Contract dispute

Electronic Data Involved: Fabricated emails

Read v. Teton Springs Golf & Casting Club, LLC, 2010 WL 2697596 (D. Idaho July 6, 2010)

Dec 01 2010

Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored

Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties

Electronic Data Involved: Email, hard drives

Chapman v. Gen. Board of Pension & Health Benefits of the United Methodist Church, 2010 WL 2679961 (N.D. Ill. July 6, 2010)

Dec 01 2010

Key Insight: Where defendant failed to specify a form of production in its initial discovery requests and where defendant produced documents in hard copy, court found that no reproduction of electronic documents was required and rejected defendant?s arguments that plaintiff had failed to uphold her discovery obligations

Nature of Case: Violations of American’s with Disabilities Act

Electronic Data Involved: Electronic versions of previously produced hard copy

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Union Pac. R.R. Co. v. United States Envtl. Prot. Agency, 2010 WL 2560455 (D. Neb. June 24, 2010)

Dec 01 2010

Key Insight: Where plaintiff presented evidence purportedly showing defendant?s intentional destruction of relevant evidence, court found an imminent threat of irreparable harm to plaintiff existed absent an order to prevent the destruction and that such an order was not likely to cause significant harm to third parties and thus granted plaintiff?s motion for a temporary restraining order preventing such destruction and requiring collection and preservation of relevant evidence, among other things

Nature of Case: Environmental litigation

Electronic Data Involved: ESI

Haskins v. State, 2010 WL 2524797 (Tex. Ct. App. June 24, 2010)

Dec 01 2010

Key Insight: Relying on precedent stating that ?computer-generated data is not hearsay because there is no human declarant?, appellate court held that trial court did not abuse its discretion in admitting a document detailing the number of times a particular coupon had been scanned where testimony established that the information in the printout was automatically generated, that the information was safe from alteration while stored in the relevant computer system, that the information had not been altered, and that the computer from which the information was generated was not malfunctioning

Nature of Case: Theft

Electronic Data Involved: Printout of computer generated data

Kandel v. Brother Int?l Corp., 683 F. Supp. 2d 1076 (C.D. Cal. 2010)

Dec 01 2010

Key Insight: Court found production of privileged documents was ?inadvertent? within the meaning of the parties? stipulated protective order and that the privilege was therefore not waived where defendant took reasonable steps to prevent the inadvertent production, including creating and following a document review protocol, identifying privileged names to assist in the segregation of potentially privileged documents, and requesting that certain key words searches be used to identify potentially privileged information and where defendants took prompt steps to retrieve the privileged documents upon discovering their disclosure; district court affirmed the order, noting that the review was ?obviously complicated? by the fact that ?many or most of the documents were in Japanese and had to be obtained from Japan?

Nature of Case: Putative class action alleging unfair business practices and related claims in connection with design of toner cartridges

Electronic Data Involved: Inadvertently produced ESI

CE Design Ltd. v. Cy?s Crabhouse N., Inc., 2010 WL 2365162 (N.D. Ill. June 11, 2010)

Dec 01 2010

Key Insight: Where defendant alleged plaintiff had violated the protective order by using information contained on a hard drive and backup tapes provided by a third party to initiate additional lawsuits, court denied defendant?s motion to dismiss absent evidence of prejudice but granted third party?s motion for protective order preventing such use going forward; for plaintiff?s failure to supplement discovery, court denied motion for dismissal but gave permission for defendant?s expert to supplement report based on newly-obtained information

Nature of Case: Violation of Telephone Consumer Protection Act

Electronic Data Involved: ESI contained on hard drive, backup tapes