Electronic Discovery Law – Page 273 – Legal issues, news and best practices relating to the discovery of electronically stored information.

S.E.C. v. Leslie, 2009 WL 4724242 (N.D. Cal. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where defendant produced responsive documents after the close of discovery and explained that he believed the documents had been previously produced by his prior employer based on his misunderstanding that all documents saved to his personal computer were also saved on the employer?s network (and thus collected from that source), the court reasoned that ?a trial on the merits of the case outweighs and prejudice to the plaintiff?, that the plaintiff had had more than a month to complete the review of the newly produced documents, and that defendant had fulfilled his obligation to supplement discovery and denied defendant?s motion to exclude plaintiff?s use of the documents; court allowed defendant to depose plaintiff for an additional two hours

Electronic Data Involved: Late produced ESI

Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)

Dec 01 2009

Key Insight: Where, as a result of the autofill function in email, defendant mistakenly sent a privileged communication to a third party which was thereafter forwarded to opposing counsel in the litigation, court undertook waiver analysis pursuant to ER 502 and found that privilege was not waived where defendant disclosed the communication inadvertently, where defendant?s reliance on ?a system that had worked in particular way in the past? was reasonable to prevent disclosure, and where defendant?s counsel took immediate steps to rectify the error upon learning of the disclosure

Electronic Data Involved: Privileged email

Sanders v. Kohler, 2009 WL 4067265 (E.D. Ark. Nov. 20, 2009)

Dec 01 2009

Key Insight: Where the court interpreted defendant?s response to plaintiff?s second motion to compel to mean that defendant had complied with its preservation obligations and may produce additional materials and explicitly required defendant to immediately notify the court if that interpretation was not accurate ? and where that interpretation was not accurate but was not corrected by defendant – court granted plaintiff?s third motion to compel and ordered defendant to produce all ESI and other responsive documents with an affidavit describing the steps taken to ensure such production and warned defendant that if ?counsel makes this kind of mistake again? the court would impose sanctions

Electronic Data Involved: ESI

Cenveo Corp. v. S. Graphic Systs., 2009 WL 4042898 (D. Minn. Nov. 18, 2009)

Dec 01 2009

Key Insight: Where plaintiff produced ESI in .pdf format despite defendants? request for production in native format and later argued the term ?native format? was undefined, court found the term ?native format? was unambiguous and granted defendants? motion to compel the production (and re-production as was necessary) of ESI in native format

Electronic Data Involved: ESI

Gregorio v. Yellow Transp., Inc., 2009 WL 3756493 (N.D. Ill. Nov. 5, 2009)

Dec 01 2009

Key Insight: Court found no attorney-client privilege protection preventing production of employee’s email write up of an accident where Illinois law makes clear that ?employees who supply only the factual bases upon which the decisionmakers predicate their opinions? are not within the protected ?control group? pursuant to the relevant legal test and the communication was therefore not privileged; court also found no protection in the work product doctrine where the write up was generated in the usual course of business and was not of a ?legal nature? and ?primarily concerned with legal assistance?

Electronic Data Involved: Employee’s email description of accident

United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009)

Dec 01 2009

Key Insight: Where request for production was unduly burdensome in light of the cost of production and necessary labor to comply, despite the requesting party?s attempt to narrow the scope, and where the court found the request overly broad and that it sought information irrelevant to the litigation, court declined to compel production in response to the particular request, but granted in part other portions of the motion to compel

Electronic Data Involved: ESI

Dawe v. Corrections, USA, 2009 WL 3233883 (E.D. Colo. Oct. 1, 2009)

Dec 01 2009

Key Insight: Citing a ?pervasive? level of ?distrust that permeates this litigation? and plaintiff?s ?adamant refusal to permit even a limited inspection? and citing defendants? representations that additional, relevant information remained on the laptop and that the laptop had been ?forensically cleaned,? court granted defendants? motion to compel inspection of plaintiff?s laptop but ordered defendants to bear the cost – if inspection revealed relevant information was withheld, court invited a motion to shift some or all of the costs to plaintiff(s)

Electronic Data Involved: ESI, laptop

High Voltage Beverages, LLC v. Coca-Cola Co. 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where defendant represented that any additional searching would only result in the discovery and production of duplicative documents, court denied plaintiff?s motion to compel defendant to search an identified alternative source upon finding ?that requiring defendant to sift sand for documents it has already produced would be unreasonably duplicative of earlier efforts and that the material contained therein is likely available from other sources, to wit, an earlier production of documents?

Electronic Data Involved: ESI

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Wells Fargo Bank, N.A. v. LaSalle Bank Nat?l Ass?n, 2009 WL 2243854 (S.D. Ohio July 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff filed a motion to compel (or for sanctions) following its discovery that defendant failed to search a number of backup tapes and failed to maintain all tapes which may have contained responsive ESI, court denied the motion upon finding that burden of restoration of the tapes was ?disproportionate to the likely utility of doing so? and because LaSalle had a practice of printing and filing important emails; court also noted the parties? failure to adequately confer regarding the discovery of ESI

Electronic Data Involved: Backup tapes