Electronic Discovery Law – Page 297 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Mauna Kea Beach Hotel Corp. v. Affiliated FM Ins. Co., 2009 WL 1227850 (D. Haw. May 1, 2009)

Dec 01 2009

Key Insight: In insurance dispute, where defendant appealed the order of the Magistrate arguing that discovery requests, even as limited by Magistrate?s order, were unreasonable and burdensome in light of need to review thousands of claims without the capability to search electronically, District court ruled that discovery of related claims should be limited to claims from Hawaii and ordered production of such claims from 2003 to present

Nature of Case: Claims of bad faith, breach of contract, and unjust enrichment arising from insurance dispute

Electronic Data Involved: Electronically stored claims information

Triton Constr. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115 (Del. Ch. May, 18, 2009)

Dec 01 2009

Key Insight: Finding that defendant should have expected litigation upon his resignation to accept employment with a competitor, court found that defendant ?intentionally, or at a minimum recklessly destroyed or failed to preserve evidence? by installing wiping software to target specific files for overwriting, by deleting thousands of files and folders as well as emails, and by failing to produce his home computer or portable thumb drive without adequate explanation; court allowed adverse inference that missing information would have supported plaintiff?s position ?on any issue to which that information was relevant?

Nature of Case: Breach of fiduciary duty by working simultaneously for direct competitor

Electronic Data Involved: Email, ESI

Phillips v. Potter, 2009 WL 1362049 (W.D. Pa. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants failed to timely place a litigation hold and where electronic evidence was subsequently destroyed by an automatic deletion system, court declined to impose sanctions upon plaintiff?s failure to show that the evidence destroyed was relevant to her claims

Nature of Case: Violations of Title VII and breach of contract

Electronic Data Involved: ESI

State v. Denton, 768 N.W.2d 250 (Wis. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court erred in admitting computer generated animation allegedly depicting the events that lead to trial where State failed to provide notice of its intent to use the animation, where the animation was created by a non-expert witness who lacked personal knowledge of the events, and where the State failed to lay a foundation for the evidence based on the incorrect assumption that the animation was merely demonstrative; appellate court determined animation was more prejudicial than probative where it did not merely illustrate a witness?s testimony but rather was ?a collage of information? from each of the State?s witnesses presented as fact

Nature of Case: Attempted kidnapping, false imprisonment, attempted armed robbery

Electronic Data Involved: Computer generated animation

Argus & Assoc. v. Prof?l Benefits Servs., 2009 WL 1297374 (E.D. Mich. May 8, 2009)

Dec 01 2009

Key Insight: Where plaintiff claimed its inability to timely respond to defendant?s discovery requests was caused by defendant?s failure to provide access to Medi-web website, court rejected claims that defendant had intentionally misled plaintiff but reasoned that defendant?s behavior ?was not exemplary? and that the parties should have addressed the website when developing their discovery plan; court?s order upheld prior evidentiary sanction for late productions of evidence related to claims of breach of duty, but excepted evidence not known to plaintiffs until after accessing Medi-web

Nature of Case: Breach of statutory and contractual duties

Electronic Data Involved: Website

Loius Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., 2009 WL 1312898 (N.D. Cal. May 12, 2009)

Dec 01 2009

Key Insight: Where plaintiff?s initial investigation into publicly posted Internet content evidencing offers for counterfeit products revealed that several previously identified addresses belonged to the same individual and where plaintiff identified additional potentially infringing sites, court granted plaintiff?s motion to modify the court ordered inspection protocol to allow investigation beyond the 67 websites previously identified; court rejected defendants? argument that modification should be denied as burdensome where plaintiff was to bear the cost of the searching and rejected defendants privacy concerns in light of expert?s articulated methodology for pinpointing only potentially relevant material

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Website Content

Capitol Records, Inc. v. Alaujan, 2009 WL 1292977 (D. Mass. May 6, 2009)

Dec 01 2009

Key Insight: Where defendant admitted use of a particular computer to share copy written files but was unable to remember relevant details of the file sharing and put the question of the significance and scope of his infringement at issue, court granted plaintiffs? motion to copy and inspect defendant?s computer but ordered very strict protective order in light of defendant?s significant privacy concerns

Nature of Case: Copyright infringement

Electronic Data Involved: Electronic records related to file-sharing software and metadata associated with music files, including deleted files

Realnetworks, Inc. v. DVD Copy Control Assoc., Inc., 2009 WL 1258970 (N.D. Cal. May 5, 2009)

Dec 01 2009

Key Insight: Where, despite plaintiffs? failure to specify each technology individually, plaintiffs? preservation order was deemed sufficient because the instructions to preserve utilized terminology customarily used within the company to refer a category of technologies, including those at issue, court nonetheless ordered parties to negotiate stipulated Preservation Order going forward; court ordered monetary sanctions for failure to preserve prior employee?s notebook, but declined to order sanctions for plaintiff?s alleged instructions to employees to delete emails absent evidence that employees willfully deleted emails after the preservation order was issued and where one employee at issue testified that emails subject to preservation were not among those deleted and where a second employee at issue deleted emails prior to duty to preserve and subsequently located back up drive with substantial number of non-email documents

Nature of Case: Declaratory judgment

Electronic Data Involved: Email, ESI

Stirling Bridge, LLC v. Porter, 2009 WL 125549 (Ariz. Ct. App. May 7, 2009)

Dec 01 2009

Key Insight: No abuse of discretion in granting defendant?s motion for summary judgment on the issue of destruction of evidence where defendant offered uncontroverted evidence that his partner destroyed computers, without defendant?s involvement, because they were ?obsolete? and where plaintiffs failed to ?raise a disputed issue of material fact regarding [defendant?s] responsibility for [his partner?s] destruction of the computer and other electronic evidence?

Nature of Case: Legal malpractice, breach of fiduciary duty, breach of contract, and securities fraud

Electronic Data Involved: Computers (hard drives)

Dirickson v. State, 2009 WL 195744 (Ark. App. Jan. 28, 2009)

Dec 01 2009

Key Insight: Trial court?s ruling allowing admission of transcripts of online chats into evidence was affirmed where such evidence was considered ??original? in the context of computers? under the rules of evidence and thus satisfied the Best Evidence Rule; court reasoned that even if the transcripts had not satisfied Best Evidence Rule, transcripts were admissible as copies because the originals had been destroyed, but not in bad faith, and the transcripts (?duplicates?) were authenticated by the officer?s testimony regarding how the transcripts were created and the reliability of their content

Nature of Case: Internet stalking

Electronic Data Involved: Transcripts of online chat