Electronic Discovery Law – Page 258 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Nissan N.Am., Inc. v. Johnson Elec. N. Am., Inc., 2010 WL 1790354 (E.D. Mich. May 5, 2010)

Dec 01 2010

Key Insight: Upon defendant?s motion to compel pursuant to Fed. R. Civ. P. 26(b)(2)(B), court ordered plaintiff to supplement its discovery to specifically identify sources of ESI claimed to be ?not reasonably accessible? and to provide the anticipated costs and efforts involved in retrieving that ESI

Nature of Case: Defective design of air conditioner components leading to recall

Electronic Data Involved: Not reasonably accessible ESI

State v. Thompson, 777 N.W.2d 617 (N.D. 2010)

Dec 01 2010

Key Insight: Where the rules of evidence require authentication sufficient to establish that the evidence in question is what the proponent claims, admission of image of text message was no abuse of discretion where defendant did not argue that the image was not an accurate reflection of the message and where the complainant (victim) and defendant established by their testimony that defendant?s cell phone number and signature were on the image and provided other circumstantial evidence to establish that the image was what it was claimed to be

Nature of Case: Criminal prosecution for simple assault

Electronic Data Involved: Image of text message

United States v. Renzi, 2010 WL 1417475 (E.D. Mich. Apr. 7, 2010)

Dec 01 2010

Key Insight: Where defendants accused the government of spoliation of all disks (originals and copies) containing relevant data from a particular computer system and requested dismissal of the indictment against them as a result, court denied the motion for dismissal upon determining that defendants failed to establish the materiality of the data such that its destruction (intentional or otherwise) was a constitutional violation and where a complete copy of the data existed on a backup tape seized later in the investigation

Nature of Case: Criminal – Mail fraud

Electronic Data Involved: Data stored on JENKON system

Clark v. Randalls Food, 317 S.W.3d 351 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in denying motion for sanctions where, despite defendant?s failure to preserve all relevant portions of a surveillance video tape, the court found the tape would not have revealed information necessary to establish defendant?s knowledge of the allegedly dangerous condition at issue and thus, there was no prejudice to plaintiff

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance video

One River Place Condo Assoc., Inc. v. Axis Surplus Ins. Co., 2010 WL 235028 (E.D. La. Jan. 14, 2010)

Dec 01 2010

Key Insight: Addressing the question of whether document imaging costs were recoverable under 28 USC ? 1920, court noted that ?[t]oday?s technologies allow counsel to exchange ?copies? of [documents for use in the case] electronically, reducing time and cost? and that there was no indication that electronic production was more expensive or duplicative of hard copy costs, and held that it ?would not punish [plaintiff] for choosing the more efficient, electronic method of producing costs? and that plaintiff?s document imaging costs were therefore recoverable under the statute

Nature of Case: Claims arising from property damage resulting from Hurrican Katrina

Electronic Data Involved: ESI

Holland v. Barfield, 35 So.3d 953 (Fla. Dist. Ct. App. 2010)

Dec 01 2010

Key Insight: Appellate court granted writ of certiorari and quashed lower court?s order compelling petitioner?s production of her hard drives and SIM card for inspection by respondent where there was no evidence of destruction of data or threat of destruction sufficient to support such an order, where the order did not protect petitioner against disclosure of confidential or privileged materials because petitioner was provided no opportunity to review materials prior to production, and where there were less intrusive means to acquire the data sought

Nature of Case: Wrongful death

Electronic Data Involved: Hard drives, cell phone (SIM card)

Arista Records LLC v. Doe 3, 604 F.3d 110(2nd Cir. 2010)

Dec 01 2010

Key Insight: Rejecting defendant?s First Amendment arguments, court affirmed rulings of the lower courts denying defendant?s motion to quash a subpoena seeking disclosure of his identity where defendant was suspected of copyright infringement online, namely unlawfully sharing copyrighted materials

Nature of Case: Copyright infringement (file sharing)

Electronic Data Involved: Name of ISP subscriber

Eurand, Inc. v. Mylan Pharm., Inc., 266 F.R.D. 79 (D. Del. 2010)

Dec 01 2010

Key Insight: Evaluating the adequacy of plaintiff?s search for a specific category of information, the court noted that the test to determine the appropriateness of a search is whether the search ?could?have been expected to produce the information requested?, determined that the information sought was likely to be found in the emails of the inventors of a specific patent, and ordered plaintiff to search the emails of the relevant inventors within a date range prescribed by the court; opinion included brief discussion of keyword searching and noted, “[n]either lawyers nor judges are generally qualified to opine that certain search terms or files are more or less likely to produce information than those keywords or data actually used or reviewed.”

Nature of Case: Patent litigation

Electronic Data Involved: Emails

Shlala v. Catholic Health & Human Servs., 2010 WL 1655869 (N.J. Super. Ct. App. Div. Apr. 23, 2010)(Unpublished)

Dec 01 2010

Key Insight: Trial court did not err in dismissing plaintiff?s claim of fraudulent concealment arising from the destruction of the hard drive plaintiff utilized while employed by defendant where plaintiff failed to specifically request the preservation or production of the computer?s contents until three years after he was terminated (despite filing a complaint and requesting discovery) and where plaintiff failed to establish any of the five elements necessary to support an action for fraudulent concealment, including failing to establish defendants? duty to preserve, the materiality of the evidence destroyed, and the inability to obtain the evidence from another source, among other things

Nature of Case: Employment litigation

Electronic Data Involved: ESI on hard drive utilized by plaintiff while employed by defendant

Alpert v. Riley, 2010 WL 1556566 (S.D. Tex. Apr. 19, 2010)

Dec 01 2010

Key Insight: Where defendant previously stored privileged materials on the computer of a third-party business partner and where the relationship later soured, defendant inadvertently waived claim of privilege as to privileged ESI by failing to take prompt steps to protect the privileged materials following clear notice that the protections he had placed (passwords, etc.) were no longer in place and by persisting in that failure to protect the material for a number of years thereafter

Nature of Case: Alleged improper excercise of authority by trustee

Electronic Data Involved: Electronic documents