Electronic Discovery Law – Page 293 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Thompson v. State, 210 P.3d 1233 (Alaska Ct. App. 2009)

Dec 01 2009

Key Insight: Appellate court held audio tapes were properly authenticated and admitted into evidence and that trial court did not abuse its discretion upon finding that ?the State presented ample evidence to support the conclusion that the two recordings accurately depicted the two conversations they purported to reproduce? including testimony from victim?s mother who actually taped the conversations and the State Trooper who provided the equipment and instructions; court declined to adopt nine part traditional test for authentication and noted the ?modern approach,? i.e., ?[whether[ the proponent [of the evidence has] presented sufficient evidence to support a rational finding [that] the tape recording is authentic?

Nature of Case: Second degree sexual abuse of a minor

Electronic Data Involved: Audio tapes

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Boyer v. Gildea, 2009 WL 230646 (N.D. Ind. Jan. 29, 2009)

Dec 01 2009

Key Insight: Finding emails between trustee?s former and current counsel and an email between current counsel and a fact witness subject to protection from disclosure under the work production doctrine and noting defendant?s failure to assert substantial need or inability to obtain equivalent materials by other means, court denied defendant?s motion to compel production of the emails at issue

Nature of Case: Adversary proceeding alleging statutory violations by entering into agreement to control price of auction assets

Electronic Data Involved: Emails

Newman v. Borders, 257 F.R.D. 1 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where defendant?s 30(b)(6) deponent did not have sufficient knowledge of defendant?s document and email retention policies or how searches of its electronically stored information were conducted and where the parties could not reach agreement regarding the proper disclosure or production of such information, court denied plaintiff?s request to take additional depositions and ordered defendant to submit an affidavit responding to nine questions crafted by the court aimed at disclosing the disputed information

Nature of Case: Race discrimination

Electronic Data Involved: Information about email and document retention and seach methodology

Midkiff v. Commonwealth, 2009 WL 1851009 (Va. Ct. App. June 30, 2009)

Dec 01 2009

Key Insight: Trial court did not abuse its discretion in admitting reproductions of images found on appellant?s computer at trial where the Commonwealth presented testimony from the forensic scientist and investigator responsible for making the reproductions explaining the process of reproducing the images and confirming that the reproductions accurately represented the images on defendant?s hard drive, and where defendant admitted membership in relevant websites and storing child pornography on his computer; in Virginia, the best evidence rule is limited to writings and was not applicable in this case

Nature of Case: Possession of child pornography

Electronic Data Involved: Reproductions of images on defendant’s hard drive

Clarke v. J.P. Morgan Chase & Co., 2009 WL 1838995 (S.D.N.Y. June 22, 2009)

Dec 01 2009

Key Insight: Court upheld prior determination that email withheld as protected by attorney-client privilege should be produced where review of the email and affidavits of defendant?s employees showed that ?rather than having been asked to make a recommendation, in-house counsel had been charged with making a corporate decision as to whether certain jobs would be reclassified? and that the email informed the recipients of that decision and did not provide legal advice

Nature of Case: Class action alleging violations of Fair Labor Standards Act

Electronic Data Involved: Email

Mancini v. Ins. Corp. of N.Y., 2009 WL 1765295 (S.D. Cal. June 18, 2009)

Dec 01 2009

Key Insight: Where plaintiffs responded to defendants? requests for production by producing 73 CDs containing the entire universe of documents from an underlying litigation, court held that plaintiffs ?cannot fulfill their discovery obligation?without referencing which specific documents were responsive to which specific request? and ordered plaintiffs to provide defendants with a list of documents responsive to each request

Nature of Case: Breach of insurance contract, failure to indemnify

Electronic Data Involved: ESI

QuinStreet v. Ferguson, 2009 WL 1789433 (W.D. Wash. June 22, 2009)

Dec 01 2009

Key Insight: Where defendant responded to plaintiff?s requests for production by producing a link to the responsive electronically stored information and where the link appeared to be thousands of pages of raw code and the emails could not be separated from one another, court ordered re-production of the information in a reasonably readable format or for defendant to cooperate to allow conversion of the ESI by a third party, for defendant to number each email to indicate to which request it was responsive, and for a statement regarding whether production was complete

Nature of Case: Defamation, interference with contractual relations, and intentional interference with prospective economic damages

Electronic Data Involved: ESI, emails

State v. Underdahl, 767 N.W.2d 677 (Minn. 2009)

Dec 01 2009

Key Insight: Abuse of discretion for district court to order discovery of source code of Intoxilyzer 500EN absent presentation of evidence on how source code may relate to guilt or innocence; no abuse of discretion for finding that source code was in ?possession or control? of state where state?s response to relevant request for proposal when replacing the previous breath test instrument asserted ownership of copyrighted material (i.e., portions of the source code, as discussed by the court)

Nature of Case: Driving under the influence

Electronic Data Involved: Source code

State v. Hall, 2009 WL 1751473 (Minn. Ct. App. June 23, 2009) (Unpublished)

Dec 01 2009

Key Insight: Appellate court affirmed (on alternative grounds) trial court?s denial of defendant?s motion to compel production of the Intoxilyzer 500EN source code where defendant failed to present any evidence of the source code?s relevance beyond his ?bare assertion that he must have access to the source code in order to effectively challenge his test result? and thus ?failed to meet the standard necessary for compelled disclosure?

Nature of Case: Driving while impaired

Electronic Data Involved: Source code