Electronic Discovery Law – Page 256 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Edington v. Madison Coal & Supply Co., Inc., 2010 WL 2244078 (E.D. Ky. June 4, 2010)

Dec 01 2010

Key Insight: Finding ?there [was] no evidence that the electronic data was ever created, much less?discarded?, court denied plaintiff?s motion for spoliation sanctions where defendant presented evidence that the relevant GPS system had to be activated in order to record data and that the system was not activated on the date of the accident, and where no regulation or law required the GPS be activated or recording

Nature of Case: Personal Injury

Electronic Data Involved: GPS data

King Pharm. Inc. v. Purdue Pharma L.P., 2010 WL 2243872 (W.D. Va. June 2, 2010)

Dec 01 2010

Key Insight: Where defendant produced a partially redacted document containing four inadvertently unredacted pages, court found that the disclosure met the test of 502(b) and that privilege was not waived ?in light of the low volume of production? and defendant?s prompt action to ?rectify the error? upon learning of the disclosure; court also stated that ?the fact that the document had been reviewed and partially redacted does not by itself prevent the disclosure from being inadvertent? and that ?[t]he nature of the mistake in disclosing a document is not limited by the rules, and logically ought to include mistaken redaction, as well as other types of mistakes that result in disclosure.?

Nature of Case: Patent litigation

Electronic Data Involved: Four unredacted privileged pages of printed presentation

Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? motion to compel forensic imaging of defendants? computers and electronic media devices by court-appointed, neutral forensic examiner upon showing that defendants likely misappropriated proprietary information from plaintiff, that at least one defendant breached his duty to preserve by discarding a relevant laptop, and where there was a ?sufficient nexus? between plaintiffs? claims and its need obtain the requested forensic images; court split cost 80% to defendant 20% to plaintiff citing defendant?s ?culpability in necessitating the expense? and set out the imaging protocol to be employed by an agreed upon expert

Nature of Case: Computer Fraud and Abuse Act

Electronic Data Involved: Forensic image of hard drives, electronic media devices

Current Med. Directions LLC v. Salomone, 2010 WL 714686 (N.Y. Sup. Ct. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court found attorney-client privilege did not protect emails residing on defendant?s server which, along with other assets, was sold to plaintiff in the underlying acquisition where defendant made no effort to delete the emails prior to the acquisition and failed to independently discover that the privilege emails had been produced to him as part of plaintiff?s production, and where evidence indicated that defendant knew, at least generally, the privileged documents had been inadvertently produced but did not seek their return

Nature of Case: Claims arising following acquisition of defendant’s company and his subsequent termination

Electronic Data Involved: Privileged emails

Aponte-Navedo v. Nalcom Chem. Co., 268 F.R.D. 31 (D.P.R. 2010)

Dec 01 2010

Key Insight: Upon plaintiff?s first motion to compel, the court found that while information regarding defendant?s information technology department and the hardware and software used by defendant is discoverable, plaintiff?s requests were overly broad and the court could not compel responses to the interrogatories as drafted but ordered defendants to identify the computer program or software used to created or transmit the already produced documents and for defendants to produce native documents with metadata intact

Nature of Case: Employment discrimination

Electronic Data Involved: Information regarding defendant’s information technology department, ESI

Xiao Yang Chen v. Fischer, 901 N.Y.S.2d 682 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where plaintiff ?contumaciously defied discovery orders? by deleting materials from her hard drive that she had been directed to produce, trial court ?improvidently exercised its discretion? by failing to dismiss all of plaintiff?s claims; appellate court reversed and entered order dismissing plaintiff?s remaining claims

Nature of Case: Personal injury

Electronic Data Involved: ESI on hard drive

Camesi v. Univ. Pittsburgh Med. Ctr., 2010 WL 2104639 (W.D. Pa. May 24, 2010)

Dec 01 2010

Key Insight: In an order addressing a number of discovery concerns, court ordered the parties to meet and confer to resolve ESI disputes and ordered defendants to ?at a minimum? ensure that all files stored in electronic format were produced in a ?searchable? format and to re-produce ESI in native format absent a showing of undue hardship or expense; court ordered defendants to produce metadata and indicated willingness to excuse plaintiff?s failure to request it earlier in light of plaintiff?s ?repeated, good faith requests to meet and confer?

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: ESI

Zynga Game Net. v. Williams, 2010 WL 2077191 (N.D. Cal. May 20, 2010)

Dec 01 2010

Key Insight: Court granted motion for leave to serve subpoenas on third parties (GoDaddy, Microsoft Office Live, and PayPal) for purposes of obtaining information sufficient to identify and locate suspected copyright infringers but ordered plaintiff to narrow the scope of the subpoenas for the limited purpose of identification

Nature of Case: Copyright infringement

Electronic Data Involved: Information sufficient to identify suspected defendants

Griffin v. State, 995 A.2d 791(Md. Ct. Spec. App. 2010)

Dec 01 2010

Key Insight: Finding ?no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic content – by their content and context?, court found that a paper copy of a MySpace profile page was properly authenticated by the presence of a photograph of the alleged owner of the profile on the printed page, the presence of unique identifiers such as her date of birth, number of children, and use of the admitted nickname of her boyfriend, ?Boozy?, and by the testimony of an officer that he believed the profile belonged to the alleged owner for the reasons previously listed (presence of unique identifiers, etc.)

Nature of Case: Criminal

Electronic Data Involved: MySpace profile page

Martinez-Hernandez v. Butterball LLC, 2010 2089251 (E.D.N.C. May 21, 2010)

Dec 01 2010

Key Insight: Where plaintiff?s search requests were unreasonable and unduly burdensome and where defendant?s proposed ESI search could ?be reasonably expanded to search for relevant information without becoming unduly burdensome?, court ordered the parties to continue negotiating to identify 25 agreed upon search terms to search relevant custodians? reasonably accessible data; court found backup tapes ?not readily accessible because of undue burden or cost? and ordered defendant to run the agreed upon search terms ?only on reasonably accessible sources, such as active and archived data of network computers?

Nature of Case: Class action

Electronic Data Involved: ESI