Electronic Discovery Law – Page 284 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Oracle USA v. SAP AG, 264 F.R.D. 541 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Pursuant to the authority granted by Federal Rules of Civil Procedure 37 and 16, court granted defendants? motion to preclude plaintiffs? presentation of evidence of certain damages where plaintiffs failed to timely inform defendants of their vastly expanded damages claims (despite their ability to do so) and failed to timely supplement their initial disclosures accordingly, and where such expansion would prejudice the defendants in light of the volume of information to be analyzed and the attendant cost; court?s analysis relied in part upon the extensive discovery that had already been undertaken

Nature of Case: Copyright infringement

Electronic Data Involved: Evidence of expanded damages claims

Beyer v. Medico Ins. Group, 2009 WL 3817211 (D.S.D. Nov. 13, 2009)

Dec 01 2009

Key Insight: Where defendant claimed responding to discovery would require searching 200,000 claim files but where court determined defendant could sort claims files using specific codes, court found defendant?s assertions ?disingenuous? and ordered production of the requested files; where defendant claimed search remained unduly burdensome because of need to convert certain files to allow text searching, court reasoned that ?the fact that answering [request for relevant discovery] will be burdensome and expensive is not in itself a reason for the court?s refusing to order discovery which is otherwise appropriate? and ordered the production of all documents describing defendant?s electronic means of searching and all software used during the relevant timeframe (as requested by plaintiff) if defendant persisted in claiming an inability to search electronically as a basis for refusing to answer discovery

Nature of Case: Bad faith denial of insurance claims

Electronic Data Involved: Electronic claim files

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

U.S. v. Dunning, 2009 WL 2815739 (D. Ariz. Nov. 12, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion to compel production of ?information that is located in the unallocated or deleted space? of the relevant hard drive where defendant was in possession of ?precisely the same images of the hard drives? that the plaintiff possessed, where plaintiff was not in possession, custody, or control of information not already produced to defendant, and where ?Defendant [was] just as capable as the Government is of extracting the information for trial.?

Nature of Case: Criminal

Electronic Data Involved: Data from unallocated space on hard drive

Assoc. Press v. Canterbury, 688 S.E.2d 317 (W. Va. 2009)

Dec 01 2009

Key Insight: Finding that ?a personal email communication made by a public official or public employee, which does not related to the conduct of the public?s business, is not a public record subject to disclosure under FOIA,? West Virginia?s Supreme Court of Appeals reversed in part a lower court ruling compelling the production of five personal emails pursuant to West Virginia?s Freedom of Information Act (FOIA)

Nature of Case: Freedom of Information Request (FOIA)

Electronic Data Involved: Emails

Palm Bay Int., Inc. v. Marchesi Di Barolo, S.P.A., 2009 WL 3757054 (E.D.N.Y. Nov. 9, 2009)

Dec 01 2009

Key Insight: Noting a lack of any indication that plaintiff objected to production in electronic format and highlighting the fact that electronic discovery is permitted under the Federal Rules, court ordered production of discovery in electronic format and directed the parties to confer to determine the best method of production; upon defendant’s assertion that plaintiff failed to produce certain relevant communications as evidenced by the production of previously unseen communications by a third party, court declined to impose sanctions absent evidence of bad faith but indicated a willingness to re-open depositions upon defendant?s submission of subjects to be pursued therein

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 WL 3756898 (D.N.H. Nov. 9, 2009)

Dec 01 2009

Key Insight: Finding that emails transmitted for purpose of responding to discovery were not privileged, court affirmed magistrate?s order denying motion to quash subpoena seeking production of such emails; addressing defendant?s argument that separate email entries on privilege log should have been considered as a string, court relied on Muro v. Target Corp. noting that while ?Muro says that a court cannot force a party to individually list emails that appear in a privilege log as a string; it does not say that a court must string together emails that are listed separately.?

Nature of Case: trademark infringement

Electronic Data Involved: Emails

Saadi v. Maroun, 2009 WL 3736121 (M.D. Fla. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where plaintiff offered printouts of defamatory statements from website for the limited purpose of proving the statements appeared on the worldwide web on the days that plaintiff personally saw the statements and printed them from the computer, testimony of plaintiff of his personal knowledge of the content was sufficient to authenticate the documents

Nature of Case: Defamation

Electronic Data Involved: Printout of website

Blangsted v. Snowmass-Wildcat Fire Prot. Dist., 2009 WL 2407655 (Aug. 5, 2009

Dec 01 2009

Key Insight: Where defendants sought dismissal or a new trial based upon plaintiff?s loss of an audiotape of the meeting in which he was terminated, court declined to grant the requested sanctions upon finding that no litigation was pending at the time of the loss, that any prejudice to defendants was small, that plaintiff?s degree of culpability was small and where there was no evidence of bad faith; court nonetheless indicated its willingness to consider the loss in any claims for fees or costs citing plaintiff?s failure to disclose the existence and loss of the tape which resulted in expenses to defendants to settle the dispute

Nature of Case: Wrongful termination

Electronic Data Involved: Audio tape

Gray v. State, 2009 WL 3645055 (Tex. App. Nov. 4, 2009) (Unpublished)

Dec 01 2009

Key Insight: Emails were properly authenticated by defendant?s acknowledgment that he sent the emails at issue during a recorded interview with detectives, by the victim?s testimony that she was familiar with defendant?s email address and signature and by defendant?s own offering of emails between himself and the victim which contained identical email addresses to those emails challenged on appeal

Nature of Case: Criminal

Electronic Data Involved: Emails