Electronic Discovery Law – Page 281 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Sony BMG Music Entm?t v. Doe, 2009 WL 5252606 (E.D.N.C. Oct. 21, 2009)

Dec 01 2009

Key Insight: Considering the five factors established in Sony Music Ent. v. Does 1-40, 326 F.Supp.2d 556(S.D.N.Y. 2004) to determine whether an anonymous defendant?s identity is shielded from discovery by the first amendment (in circumstances such as those presented here), court denied a motion to quash the subpoena seeking anonymous defendant?s identity where plaintiffs made a concrete showing of a prima facie claim, where the subpoena was narrowly drawn and sought limited information, where there was no alternate means of identifying the defendant, where the information was necessary to effect service on the defendant and where ?defendant has little expectation of privacy in allegedly distributing music over the internet without permission of the copyright holder?

Nature of Case: Copyright infringement

Electronic Data Involved: Identity of alleged John Doe infringer

Palisades Collection, LLC v. Kedik, 890 N.Y.S. 2d 230, 67 A.D. 3d 1329 (N.Y. App. Div. 2009)

Dec 01 2009

Key Insight: Appellate court affirmed lower court?s finding that plaintiff failed to lay a proper foundation for the admission of a printed electronic spreadsheet where, although plaintiff?s agent averred the spreadsheet was kept in the usual course of business, the agent failed to establish his familiarity with plaintiff?s business practices and ?when, how, or by whom? the spreadsheet was made and where the agent failed to establish that the printed spreadsheet was a true and accurate representation of the electronic record

Nature of Case: Breach of contract

Electronic Data Involved: Printed electronic spreadsheet

David v. Signal Int. LLC, 2009 WL 5215326 (E.D. La. Dec. 28, 2009)

Dec 01 2009

Key Insight: Where pro se defendant failed to assert the attorney client privilege when such information was sought and ?selectively disclosed? such information despite warnings from his former counsel, court found defendant had waived the attorney-client privilege as to communications with counsel; addressing defendant?s argument that his disclosures were ?mistakes? (and thus inadvertently produced) court noted defendant?s failure to seek the return of the confidential communications, his lack of effort to ?rectify or withdraw? any of his deposition disclosures, and that the disclosures occurred following warning from counsel and therefore found that ?any argument?that he inadvertently disclosed confidential communications?lacks merit.?

Nature of Case: Class action

Electronic Data Involved: Privileged communications

Convertino v. U.S. Dep?t of Justice, 674 F. Supp. 2d 97(D.D.C. 2009)

Dec 01 2009

Key Insight: Emails between employee and counsel using work computer were protected as privileged where employer did not ban personal use of the company email and where employee was unaware of employer?s regular access to his emails and thus had a reasonable expectation of privacy; privilege was not waived, despite employer?s access to the emails, where employee had ?no intention of allowing?his employer, to read the emails? and disclosure was thus inadvertent and where he took reasonable steps to prevent disclosure by deleting the emails as they came into his account and by filing a motion to intervene to assert the privilege upon learning of his employer?s possession of the emails and their possible disclosure in litigation

Nature of Case: Violations of Privacy Act

Electronic Data Involved: Privileged emails

Vagenos v. LDG Fin. Servs., LLC, No. 09-cv-02672 (E.D.N.Y. Dec. 31, 2009)

Dec 01 2009

Key Insight: Where plaintiff destroyed the original recording of an automated telephone message that was the subject of the litigation but sought to offer an alleged duplicate recording, court denied defendant?s motion to preclude such an offering where defendant failed to establish the requisite ?bad faith? necessary under Fed. R. Evid. 1004(1) and because the evidence was vital to plaintiff?s case but ordered an adverse inference instruction allowing the jury to infer that ?the destroyed portion of the message contained information harmful to plaintiff?s case? where plaintiff and plaintiff?s counsel (who did not instruct plaintiff of his duty to preserve and was responsible for creating the duplicate recording) failed to uphold their duty to preserve evidence in anticipation of litigation

Nature of Case: Violation of Fair Debt Collection Practices Act

Electronic Data Involved: Recording of automated telephone message

Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480 (Fed. Cl. Aug. 28, 2009)

Dec 01 2009

Key Insight: In this long discovery opinion, court conducted waiver analysis pursuant to Fed. R. Evid. 502 of 8 documents and found that privilege had been waived as to each document for a myriad of reasons including: a finding that production was not inadvertent where the document(s) at issue had been produced (via FOIA or discovery response) on more than one occasion, defendants failure to adequately establish the measures taken to prevent the disclosure of the document(s) at issue, defendants failure to adequately object to the use of the document(s) at deposition, and defendants failure to request the return of the document(s) following discovery of their production or to take other measures to rectify disclosure

Nature of Case: Breach of contract and taking without just compensation

Electronic Data Involved: Privileged emails and hard copy

Gutierrez-Bonilla v. Target Corp., 2009 WL 5062116 (E.D.N.Y. Dec. 16, 2009)

Dec 01 2009

Key Insight: Where plaintiff failed to establish the existence of the allegedly destroyed surveillance tape and where, even had the existence of such a tape been established, plaintiff failed to serve any request for preservation, court found plaintiff failed to establish a duty of preservation or that the allegedly spoliated evidence could have supported her case; court also found plaintiff failed to establish defendants? culpable state of mind where, in light of the lack of notice of preservation, the tape would have been recycled in the usual course of business and denied plaintiff?s motion for spoliation sanctions

Nature of Case: Slip and fall

Electronic Data Involved: Video surveillance tape

Gillet v. MI Farm Bureau, 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where plaintiff deleted an ?extremely significant? number of data files from his personal computer despite notice of his obligation to preserve and was thus sanctioned by dismissal of his case, trial court did not abuse its discretion in concluding plaintiff?s actions were not in good faith, particularly in light of the number of files deleted, and properly considered alternative sanctions before imposing terminating sanctions, despite the trial judge?s failure to ?expressly recite? those alternatives on the record; court?s denial of attorneys? fees/monetary sanctions was no abuse of discretion where the court ?dealt appropriately? with plaintiff?s conduct by dismissing the case and where the refusal to impose additional sanctions was ?not unreasoned or unprincipled?

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Bensel v. Allied Pilots Assoc., 263 F.R.D. 150(D.N.J. 2009)

Dec 01 2009

Key Insight: Despite acknowledging that ?defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data,? the court found that plaintiffs failed to identify any specific document that was lost or destroyed, failed to establish destruction of documents in bad faith and failed to specify any prejudice arising from the alleged bad behavior and denied plaintiff?s motion for spoliation sanctions; in so holding, court noted plaintiff?s reliance on speculation and ?vague statements? which did not ?rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation.?

Nature of Case: Allegations of breach of duty of fair representation

Electronic Data Involved: ESI

Jneid v. Tripole Corp., 2009 WL 4882654 (Cal. Ct. App. Dec. 17, 2009)

Dec 01 2009

Key Insight: Appellate court reversed the judgment of the trial court and remanded the case for a new trial upon finding that defendant ?did not act intentionally? when if failed to produce certain documents before trial and that the evidentiary and issue sanctions imposed, including preclusion of use of certain documents, preclusion from introducing certain evidence, preclusion of certain arguments, and an adverse jury instruction, were ?more severe than necessary? where an order for defendant to pay all costs incurred by the completed trial (as suggested by defendant) was sufficient to rectify the prejudice to the plaintiff; on remand, court ordered trial court to determine the cost incurred by plaintiffs and cross-complainant in connection with trial and the costs incurred because of the late production of documents and for defendant to pay such costs

Nature of Case: Breach of employment contracts

Electronic Data Involved: Computer embedded information