Electronic Discovery Law – Page 287 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Dilts v. Maxim Crane Works, L.P., 2009 WL 3161362 (E.D. Ky. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where defendants failed to record data stored on crane?s computer following death of two construction workers, but where plaintiffs offered no evidence to support their allegations that the data was manually destroyed or that the failure to photograph the display was unreasonable and where defendants presented evidence that data could not be downloaded from the crane?s computer and plaintiff failed to request the information downloaded in the first place, court declined plaintiffs motion for spoliation sanctions

Nature of Case: Negligence resulting in death

Electronic Data Involved: ESI stored on crane’s internal computer

In re: Application of Operadora DB Mexico, S.A. De C.V., 2009 2435750 (M.D. Fla. May 28, 2009)

Dec 01 2009

Key Insight: Where non-party to international arbitration sought to quash subpoena on grounds including the undue burden of searching for and producing electronic discovery, magistrate judge recommended that electronic data previously produced by non-party in prior litigation should be produced but that the parties should meet and confer regarding the production of additional data and should specifically address including: the medium on which the data was stored, the volume of data, the practicability of searching the data, and the likely costs associated with production

Nature of Case: International arbitration over franchise rights in Mexico

Electronic Data Involved: ESI

In re Netbank Sec. Litig., 2009 WL 2461036 (N.D.Ga. Aug. 7, 2009)

Dec 01 2009

Key Insight: Court ordered production of ESI in native format, despite defendants? objections that such production was not required by the federal rules, allowed for the alteration of documents, and prevented bates labeling, among other reasons, where defendants? problems were deemed ?hypothetical? and where plaintiff ?definitively stated? that the provision of TIFF documents both made the review more expensive and served to conceal metadata

Nature of Case: Class action securities litigation

Electronic Data Involved: ESI

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Plan Pros Inc. v. Torczon, 2009 WL 3063017 (Sept. 18, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel re-production of financial information in its original Quickbooks format where the information was previously produced following conversion to .xls format which resulted in the loss of metadata and where defendants failed to argue that production in the original format (the form or forms in which it was ordinarily maintained) was not possible

Nature of Case: Copyright infringement

Electronic Data Involved: Financial ESI

Zenith Elecs., Inc. v. Vizio, Inc., 2009 WL 3094889 (S.D.N.Y. Sept. 25, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel production of documents by non-party pursuant to subpoena where court determined non-party did not have control of the documents requested because such documents were maintained by foreign parent company and non-party did not have access to them in the ordinary course of business

Nature of Case: Patent infringement

Electronic Data Involved: ESI, source code

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.

Nature of Case: Failure to accomodate

Electronic Data Involved: Email

Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009)

Dec 01 2009

Key Insight: Court ordered third party, AOL, to show cause why it should not be held in contempt for failing to provide a response to defendant?s motion to compel as ordered by the court and gave leave to defendant to commence discovery on AOL?s ability to retrieve requested emails, among other topics, following contradictory representations from AOL and plaintiff regarding the same; court also noted plaintiff?s grant of permission to AOL to produce his emails and that defendant?s subpoena had been appropriately limited as to scope and thus ordered AOL to produce all responsive emails to plaintiff for review prior to production to defendant

Nature of Case: Civil rights action

Electronic Data Involved: Email

Global Ampersand, LLC v. Crown Eng?g & Constr., Inc. 2009 WL 2982901 (E.D. Cal. Sept. 14, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel upon finding that defendant ?did not timely comply with its discovery obligations? including failing to timely produce a hard drive, a laptop computer, and other relevant documents and failing to produce a privilege log, among other things, and ordered defendant to produce all relevant ESI and to provide additional information regarding the location and collection of additional ESI, including the identification of sources no longer available; court deferred ruling on alleged spoliation but awarded plaintiff $17,375.00 in attorney?s fees

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: ESI

Espy v. Info. Tech., 2009 WL 2912506 (D. Kan. Sept. 9, 2009)

Dec 01 2009

Key Insight: In an opinion addressing several discovery disputes, court granted plaintiff?s motion to compel and ordered defendants to produce a CD containing the contents of a secure website related to defendant?s attempt to sell the company following an in camera review of the same; rejecting defendant?s arguments that 28,000 pages of uncategorized electronic documents without bates stamps were produced as kept in the usual course of business, court ordered defendant?s to identify ?by index or otherwise? specific documents responsive to plaintiff?s request

Nature of Case: Suit seeking commission for sales made as employee of defendant

Electronic Data Involved: ESI