Electronic Discovery Law – Page 255 – Legal issues, news and best practices relating to the discovery of electronically stored information.

People v. Spykstra, 234 P.3d 662 (Colo. 2010)

Dec 01 2010

Key Insight: Reversing the order of the trial court, the Supreme Court established 5 part test to challenge the issuance of a pretrial subpoena and quashed the subpoenas issued by defendant where, by ordering the relevant individuals to submit their computers to inspection by defendant?s expert, the trial court ?improperly converted the subpoenas into the functional equivalent of search warrants? and where defendant failed to establish any factual basis demonstrating a reasonable likelihood that the emails sought existed or that they contained material evidence

Nature of Case: Criminal

Electronic Data Involved: Emails, Contents of hard drives

Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island, 996 A.2d 684 (R.I. 2010)

Dec 01 2010

Key Insight: Supreme court affirmed admission of ?membership data reports? generated from plaintiff?s database as business records and rejected defendant?s arguments that they lacked the necessary guarantees of trustworthiness where the records were relied upon in the usual course of business and where evidence indicated the software had been calibrated to ensure accuracy, among other things, and where the records were properly authenticated by testimony regarding the manner in which they were created and evidence the system had been producing accurate results

Nature of Case: Breach of contract

Electronic Data Involved: ?Membership data reports? generated from plaintiff?s database

Dutch v. United States, 997 A.2d 685 (D.C. 2010)

Dec 01 2010

Key Insight: Court found admission of two documents derived from information stored on computers as ?business records? was proper where evidence established the data was created and stored in the relevant information system at the time of the transaction at issued, where the data was created and used by merchants in usual course of their business, and where sufficient testimony was presented to ?give adequate reason to trust the authenticity of the documents?

Nature of Case: Conviction for attempted uttering (cashing a forged check)

Electronic Data Involved: Hard copy business records “derived from information stored on computers”

Midkiff v. Commonwealth, 694 S.E.2d 576 (Va. 2010)

Dec 01 2010

Key Insight: Where defendant challenged admission of hard copy images and video reproduced from electronic files on DVD which were copied from hard drives found in defendant?s computer, Supreme Court declined to extend best evidence rule to require admission of the hard drives themselves and, where forensic expert testified to the integrity of the copying process and where testimony was presented that verified the reproductions were accurate representations of the illicit material for which defendant was charged, court affirmed the judgment of the court of appeals that the evidence was properly admitted

Nature of Case: Possession of child pornography

Electronic Data Involved: Images copied from DVDS with in turn were copied from original hard drives

URS Corp. v. Isham, 2010 WL 2428841 (D.S.C. June 11, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for preservation and inspection of defendant?s relevant hardware but found plaintiff?s proposed protocol overly burdensome and thus ordered adherence to defendant?s proposed protocol which called for more targeted searches using terms proposed by plaintiff and provided a more reasonable time frame for the production of documents and privilege logs; parties to split the cost

Nature of Case: Claims arising from employees’ departure from plaintiff’s company to join defendant’s

Electronic Data Involved: Hard drives

United States v. Laurent, 2010 WL 2404419 (1st Cir. June 17, 2010):

Dec 01 2010

Key Insight: For the erasure of relevant surveillance tape pursuant to department practice, the trial court properly denied defendant?s request for dismissal absent evidence of destruction in bad faith because the evidence was not exculpatory but rather ?potentially useful?; for the delayed disclosure of the existence and subsequent destruction of the tape, trial court properly denied request for sanctions absent a showing of prejudice; trial court properly denied request for an adverse inference absent evidence of bad faith

Nature of Case: Criminal drug charges

Electronic Data Involved: Video surveillance tape

State v. Grenning, 234 P.3d 169 (Wash. 2010)

Dec 01 2010

Key Insight: Where defendant?s forensic expert?s access to the hard drives seized from defendant was limited by protective order which allowed access only in a county building, using county equipment, the Supreme Court affirmed reversal of defendant?s conviction for 20 counts of possession of child pornography on the grounds that he was denied meaningful access to the hard drives and held that the appropriate test ?under these circumstances? was the ??overwhelming untainted evidence test? to demine whether a trial court?s erroneous ruling requires reversal?

Nature of Case: Possession of child pornography and related charges

Electronic Data Involved: Hard drives seized from defendant

Universal Del. v. Comdata Corp., 2010 WL 2330284 (E.D. Pa. June 4, 2010)

Dec 01 2010

Key Insight: Defendant?s motion for a protective order precluding compliance with plaintiff?s? subpoena duces tecum was denied where defendant failed to establish the irrelevance of the data sought and failed to establish the unduly burdensome nature of producing the information requested or to assert that the information was not reasonably accessible and where the court determined that an existing protective order was sufficient to protect any confidential information produced

Nature of Case: Antitrust litigation

Electronic Data Involved: Emails, ESI, hard copy

Freihammer v. Powers, 2010 WL 2362957 (Minn. Ct. App. June 15, 2010)(Unpublished)

Dec 01 2010

Key Insight: Trial court did not abuse discretion by denying motion for re-production of emails in electronic format where appellant was ably to testify that she did not send the emails at issue and that they were fabricated and thus the hard copy emails were admitted in a ?reasonably useable format? as is required by the rules

Nature of Case: Petition for harassment restraining order

Electronic Data Involved: Emails

Azevedo v. City of Fresno, 2010 WL 2353526 (E.D. Cal. June 9, 2010)

Dec 01 2010

Key Insight: Where two years following the relevant altercation the taser used on plaintiff was sent to the manufacturer for repair, deemed irreparable, and was destroyed without preserving the data contained thereon, the court ruled the spoliation was negligent and declined to impose dispositive sanctions or evidence preclusion, but, noting it was ?troubled? by the data?s destruction, granted permission for plaintiff to file a motion in limine addressing the propriety of a rebuttable inference instruction regarding the spoliation

Nature of Case: Claims arising from detention and arrest of plaintiff which resulted in plaintiff being tasered and injured

Electronic Data Involved: Taser data