Electronic Discovery Law – Page 291 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Am. Serv. Mktg., Corp. v. Bushnell, 2009 WL 1870887 (E.D. La. June 25, 2009)

Dec 01 2009

Key Insight: Where plaintiff alleged defendant violated the preliminary injunction by deleting files he was directed to preserve and return to plaintiff, including using wiping software to delete files hours before producing his computer for inspection, court denied plaintiff?s motion for contempt finding that ?without some other indication that [defendant] deliberately deleted files referenced in the preliminary injunction,? plaintiff failed to present the ?clear and convincing evidence? required to warrant a finding of contempt

Nature of Case: Federal trademark and state law breach of contract claims

Electronic Data Involved: ESI

Freeman v. Comm?r of Public Safety, 2009 WL 1919931 (Min.. Ct. App. July 7, 2009) (unpublished)

Dec 01 2009

Key Insight: Where defendant ?made a minimally sufficient showing of relevancy? by arguing that the requested source code could reveal deficiencies in the accuracy of the Intoxilyzer 5000EN, court found trial court?s denial of defendant?s discovery motion an abuse of discretion and reversed in part and remanded

Nature of Case: DUI

Electronic Data Involved: Intoxilyzer 5000EN source code

Tumbling v. Merced Irrigation Dist., 2009 WL 2136112 (E.D. Cal. July 14, 2009)

Dec 01 2009

Key Insight: Citing Fed. R. Civ. P. 26(b)(2)(c)(i) and (ii), court denied defendant?s motion to compel production of plaintiff?s hard drive where defendant admitted that it had not yet exhausted less intrusive or burdensome means of discovering the information sought

Nature of Case: Employment discrimination

Electronic Data Involved: Hard drive

V. Mane Fils, S.A. v. Int?l Flavors & Fragrances, Inc., 2009 WL 1968925 (July 1, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel production of post-suit privileged and work product documents, despite defendant?s assertion of the affirmative defense of reliance on advice of counsel and its prior production of pre-suit privileged and work product documents, where the analysis of the willfulness of the infringement focused on pre-litigation activities and where, per a prior court order, defendant had not been segregating or logging such documents and so production would be a significant burden

Nature of Case: Patent infringement

Electronic Data Involved: Privileged ESI

In re Intel Microprocessor Antitrust Litig., 2009 WL 2030967 (D. Del. July 7, 2009)

Dec 01 2009

Key Insight: Court adopted Special Master?s Report and Recommendation requiring plaintiffs to respond to questions regarding the scope of their efforts with regard to the restoration of backup tapes upon finding that such information was not protected by the attorney-client privilege

Nature of Case: Antitrust litigation

Electronic Data Involved: Backup tapes, ESI

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Dec 01 2009

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

Chambers v. U.S. Dept. of Interior, 568 F.3d 998 (2009)

Dec 01 2009

Key Insight: Court reversed and remanded grant of summary judgment on the issue of the adequacy of the government?s search in response to plaintiff?s FOIA request where a material fact existed as to whether the DOI intentionally destroyed the requested material before undertaking its search which would prevent a finding that the search was adequate

Nature of Case: Freedom of Information Act / FOIA

Electronic Data Involved: Performance appraisal

Synergetics USA, Inc. v. Alcon Labs., Inc., 2009 WL 2016795 (S.D.N.Y. July 9, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion for the return of privileged documents where the documents were inadvertently produced following a ?multi-layered? review, where defendants promptly requested the return of the documents within three days of learning of their disclosure, and where ?fairness would not be offended by restoring immunity to [the] documents;? some documents subject to defendants? motion were determined not to be privileged and thus were not subject to return

Nature of Case: Violation of antitrust laws by tying sales of light tubes to sales of Accurus cassettes, predatory pricing

Electronic Data Involved: Emails

EEOC v. Aaron Bros., Inc., 620 F.Supp.2d 1102 (C.D. Cal. 2009)

Dec 01 2009

Key Insight: Court granted motion to modify subpoena and rejected defendants arguments it was overly broad and unduly burdensome where the court found the evidence sought to be relevant and material and where defendants failed to present evidence of the actual costs of production, the size of their operations and there capacity to handle those costs, or that such costs would be unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, harcopy

Telequest Int?l Corp. v. Dedicated Business Sys., Inc., 2009 WL 690996 (D.N.J. Mar. 11, 2009)

Dec 01 2009

Key Insight: Where forensic examination of defendant?s hard drive revealed the deletion of electronic evidence using wiping software and where at the time of the deletion defendant was subject to a duty to preserve, court declined to impose default judgment but ordered an adverse inference and monetary sanctions in an amount to be determined

Nature of Case: Claims of fraud, misappropriation of confidential and proprietary information, breach of fiduciary duties, and breach of contract

Electronic Data Involved: ESI, contents of hard drive