Electronic Discovery Law – Page 295 – Legal issues, news and best practices relating to the discovery of electronically stored information.

In re Zurn Plex Plumbing Prods. Liab. Litig., 2009 WL 1606653 (D. Minn. June 5, 2009)

Dec 01 2009

Key Insight: Where defendants objected to plaintiffs’ motion to compel arguing the requested search of emails and various computer drives would be unduly burdensome, court dismissed attorney?s affidavit in support of such objections as ?not compelling evidence? where attorney was not ?an expert on document search and retrieval? but, ?in an effort to control costs,? limited defendants? search to particular locations and ordered the use of 14 terms as supplied by the court or agreed upon by the parties; court invited defendants to renew their objections if the search nonetheless proved overly burdensome by submitting evidence, including evidence from ?computer experts,? in support of those objections

Nature of Case: Claims that defendants’ choice of plumbing fittings caused damage to plaintiffs’ property

Electronic Data Involved: ESI

Panos v. Timco Engine Ctr., Inc., 2009 WL 1658416 (N.C. Ct. App. June 16, 2009)

Dec 01 2009

Key Insight: Appellate court affirmed trial court?s grant of summary judgment to plaintiff despite defendant?s accusations of spoliation and request for an adverse inference instruction where precedent established that the imposition of an adverse inference was permissive and not mandatory and that it was improper to base the grant or denial of summary judgment on evidence of spoliation, among other principles of law, and where defendant failed to identify any information destroyed by plaintiff that could support it?s claims and presented no independent evidence in support of its claims or alleged damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

Clearvalue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009)

Dec 01 2009

Key Insight: In an opinion providing an extensive discussion of the court?s authority to sanction pursuant to Rule 37 and its inherent authority, the appellate court confirmed the trial court?s imposition of monetary sanctions finding that appellant-plaintiffs acted in bad faith by failing to produce relevant test results as evidenced by the content of several emails produced for the sanctions hearing (and other evidence) but overturned the trial court?s sanction of striking plaintiff?s claims pursuant to its inherent authority upon finding that plaintiffs? discovery abuses were not sufficiently egregious to warrant such sanctions; appellate court also found trial court?s reliance on inherent authority to strike plaintiffs? pleadings was misplaced in light of the applicability of Rule 37

Nature of Case: Patent Infringement, misappropriation of trade secrets

Electronic Data Involved: Test results

Averett v. Honda of Am. Mfg., Inc., 2009 WL 799638 (S.D. Ohio Mar. 24, 2009)

Dec 01 2009

Key Insight: Where the burden of searching all possible locations for a mention of plaintiff was overly burdensome in light of plaintiff?s 17 year history with the company and the unlikely possibility that additional relevant information would be discovered and where plaintiff failed to identify with particularity any documents she believed to exist or category of information likely to contain relevant information, among other things, court denied plaintiff?s motion to compel, citing Fed. R. Civ. P. 26(b)(2)

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Continental Group, Inc. v. KW Prop. Mgmt., LLC, 2009 WL 1098461 (S.D. Fla. Apr. 22, 2009)

Dec 01 2009

Key Insight: Where defendant accessed relevant files after being placed on notice of litigation and thus spoliated metadata, but where defendant?s testimony regarding her lack of knowledge that accessing the files would destroy metadata was credible and where plaintiffs failed to meet their burden of showing bad faith, plaintiffs? motion for adverse inference was denied

Nature of Case: Violations of Computer Fraud and Abuse Act, breach of restrictive covenant contracts, tortious interference with customer relationships, among others

Electronic Data Involved: Metadata

Sony BMG Music Entertainment v. Tenebaum, , 2009 WL 1651338 (D.R.I. June 10, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion to compel compliance with third party subpoena to allow access to the hard drive of the parents of defendant accused of copyright infringement in a music downloading case where parents were not parties to the action and where the computer was purchased after defendant moved out and thus plaintiffs failed to establish likelihood of the discovery of relevant information sufficient to warrant intrusion into parents? privacy

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive belonging to third party

S. Yuba River Citizens League v. Nat?l Fisheries Serv., 2009 WL 1287919 (E.D. Cal. May 6, 2009)

Dec 01 2009

Key Insight: Adopting the majority rule requiring the disclosure of ?all things communicated to [a testifying expert] and considered by the expert in forming his opinion? even if otherwise protected as work product, court established that the test for discoverability was ?whether the documents reviewed or generated by the expert could reasonably be viewed as germane to the subject matter on which the expert has offered an opinion? and ordered production of emails between counsel and testifying expert discussing the declaration or its content and also ordered the production of all previous drafts of expert?s declaration

Nature of Case: Alleged violations of Endangered Species Act

Electronic Data Involved: Drafts of testifying expert’s declarations and emails regarding same between expert and counsel

White v. Fuji Photo Film, USA, Inc., 209 WL 1528546 (S.D.N.Y. June 1, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s motion for adverse inference arising from former employer?s destruction of her work computer where plaintiff failed to indicate that the computer contained relevant information and thus employer did not have notice sufficient to raise a duty to preserve and where plaintiff failed to establish that the lost information was relevant to the action

Nature of Case: Wrongful termination

Electronic Data Involved: Plaintiff’s former work computer

Veit v. Burlington N. Santa Fe Corp., 207 P.3d 1282 (Wash. Ct. App. 2009)

Dec 01 2009

Key Insight: Appellate court declined to find abuse of discretion in trial court?s refusal to give a spoliation instruction regarding a missing event recorder where defendant offered a satisfactory explanation for the loss of data, namely, that the data on the event recorder was downloaded to a laptop, that the data was not properly recorded and so the faulty tape was destroyed to prevent its re-use, and that the laptop containing the data was later stolen

Nature of Case: Personal injury arising from train/car collision

Electronic Data Involved: Event recorder data

Omnicare, Inc. v. Mariner Health Mgmt. Co., 2009 WL 1515609 (Del. Ch. May 29, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where plaintiff sought to compel defendants to restore backup tapes containing emails that were automatically deleted but where defendants objected to restoration and production due to cost, court denied plaintiff?s motion and ordered defendants to produce relevant data from their ?active stores? first in order to assess the likelihood of finding relevant, discoverable data on the backup tapes; if active stores showed a likelihood of recovery of discoverable data on the backup tapes, court stated that processing at defendants? expense would be appropriate

Nature of Case: Dispute arising between pharamaceutcal suppliers and nursing home operator related to contractual obligations and billing

Electronic Data Involved: Backup tapes