Electronic Discovery Law – Page 275 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Rodriquez-Monguio v. Ohio State Univ., 2009 WL 1575277 (S.D. Ohio June 3, 2009)

Dec 01 2009

Key Insight: Where defendant inadvertently produced one privileged email among thousands of pages and did not actually discover such production until months later, despite plaintiff?s reference to the email in a single spaced 5 page letter, and where upon discovery of the inadvertent production defendant immediately sought the email?s return, court rejected plaintiff?s argument that defendant had waived privilege by failing to seek the email?s return within ten days, subject to the parties? clawback agreement, and ordered the email returned

Electronic Data Involved: Privileged email

Andrew Corp. v. Cassinelli, 2009 WL 736669 (N.D. Ill. Mar. 19, 2009)

Dec 01 2009

Key Insight: Where court ordered discovery into extent of defendant?s compliance with Settlement Agreement upon plaintiff?s showing that confidential information remained on defendant?s computer system and where defendant?s court ordered search for additional information included retention of discovery firm to search seven computers, an email server, and a scratch drive using 26 terms based on the content of the previously discovered confidential information, court found the search ?deficient? and that defendant had failed to confirm that all information subject to the Settlement Agreement was deleted and appointed a Special Master, at defendant?s expense, and ordered defendant to pay plaintiff?s attorneys fees for its Motion to Enforce and Supplement

Electronic Data Involved: ESI

Said Zaid v. Obama, 616 F.Supp.2d 119 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where respondents argued that the exculpatory information sought was not ?reasonably available? under the relevant section of the case management order because several separate searches would be required in order to access all relevant databases, court stated that respondents appeared to misinterpret the relevant section to require production of ?easily available? information rather than ?reasonably available? information and granted petitioner?s motion to enforce the case management order and to allow searching of the relevant databases pursuant thereto

Electronic Data Involved: Database information accessed through Intellink search tool

Wilson v. Farris, 2009 WL 1393688 (M.D. Fla. May 15, 2009)

Dec 01 2009

Key Insight: Where defendant represented that searching for requested documents would require ?hundreds of hours to complete? because each search resulted in thousands of records to be read and cross checked against hard copy to determine there responsiveness, and where defendant further indicated that the searching undertaken thus far yielded ?very few if any documents? that were responsive to plaintiff?s request, court denied plaintiff?s motion to compel production finding the required search ?unduly burdensome?

Electronic Data Involved: ESI

Robert v. Bd. of County Comm?rs of Brown Count, Kan., 2009 WL 1362530 (D. Kan. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants could not produce a requested email because of damage to author?s and recipient?s computers but where defendants undertook significant effort to search for the email, including a search by the county?s Information Technology Director and inquiry to the County?s email provider about the email?s availability, and where defendant offered to make the author?s computer available for inspection at plaintiff?s expense, court declined plaintiff?s request to ?shift the cost of an independent computer expert? to defendants and denied plaintiff?s motion to compel production of the email

Electronic Data Involved: Email

In re Atl. Marine Prop. Holding Co., Inc., 2009 WL 1211399 (S.D. Ala. Apr. 29, 2009)

Dec 01 2009

Key Insight: Where court ordered company to obtain waivers from employees allowing their personal email providers to release certain communications for production but where the email providers indicated their inability to provide those communications, court declined to order adverse inference where there was no evidence to indicate company acted in bad faith or purposefully lost or destroyed the emails

Electronic Data Involved: Email from employees’ personal accounts

Southeastern Mech. Servs., Inc. v. Brody, 2009 WL 997268 (M.D. Fla. Apr. 14, 2009)

Dec 01 2009

Key Insight: Where defendants believed plaintiff failed to produce certain relevant electronic documents and later learned of plaintiff?s alleged failure to adequately search for such documents, court denied defendant?s motion to compel where defendants failed to bring the motion until after the close of discovery and failed to raise the issue at several pre-trial conferences and where plaintiff affirmatively represented it had produced all responsive documents

Electronic Data Involved: ESI

Patterson v. Goodyear Tire & Rubber Co., 2009 WL 1107740 (D. Kan. Apr. 23, 2009)

Dec 01 2009

Key Insight: Court indicated reluctance to intervene in discovery dispute regarding contents of back up tapes where parties failed to properly confer regarding electronic discovery but, where defendants offered to search back up tapes for relevant emails from two custodians on three specific dates, court ordered the search and prescribed search terms to employ; where the estimated labor to conduct the limited search of the back up tapes would not be excessive or unduly burdensome, court ordered defendant to bear cost

Electronic Data Involved: Back up tapes

In re Motor Fuel Temperature Sales Practices Litig., 2009 WL 959491 (D. Kan. Apr. 3, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for an order relieving them of their obligation to ?review and log documents created after the commencement of litigation relating to communications with attorneys about this lawsuit,? despite defendants arguments of extreme burden, where defendants offered no case law in support of their position , where not all documents created post litigation and involving an attorney would be protected from production as privileged, and where defendants made no effort to address the lesser burden of reviewing only potentially relevant email; sympathetic to defendants? arguments that logging each message would be burdensome, court permitted defendants to categorically describe privileged communications in log

Electronic Data Involved: Email communications created after commencement of litigation

Continental Group, Inc. v. KW Prop. Mgmt., 2009 WL 425945 (S.D. Fla. Feb. 20, 2009)

Dec 01 2009

Key Insight: Where parties failed to establish filtering protocol to segregate privileged materials from portable devices because of a disagreement as to the meaning of the court?s prior order, court ordered production of images of defendant?s portable devices to plaintiff prior to performing a privilege review but held that such production would not result in waiver and indicated its belief that no prejudice to defendant?s would result, despite acknowledgement that plaintiff would have ?a few days to view the images which may contain privileged material? prior to defendants identification of privileged material

Electronic Data Involved: Privileged ESI on portable devices