Electronic Discovery Law – Page 298 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Dilley v. Metro. Life Ins., Co., 256 F.R.D. 643 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Upon finding that because of the ?relative inaccessibility of the information sought?responding to the request would be overly burdensome? where defendant was unable to query its database for the information requested and upon finding that the information sought would not satisfy plaintiff?s purpose without additional information, court found that defendant had established that ?the significance of the discovery to the issues in the present case is substantially outweighed by the burden? and granted defendant?s motion for a protective order

Nature of Case: Wrongful denial of claim for disability benefits

Electronic Data Involved: Database contents

Eastview Healthcare, LLC v. Synertx, Inc., 674 S.E. 2d 641 (Ga. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in granting plaintiff?s motion to strike defendants? affidavit and attached emails where emails were not properly authenticated; appellate court found defendants? reliance on Willis v. Hill, 116 Ga. App. 848 (1967) to appeal the trial court?s ruling was misplaced where Willis held that ?”[u]pon production of copies pursuant to a notice to produce, the producing party admits the correctness of the copies and further proof is unnecessary in order for the moving party[, i.e., the requesting party,] to introduce them into evidence? but where in the present case the emails sought to be admitted were produced by defendants, i.e. the party seeking their admission, and thus Willis was inapplicable

Nature of Case: Breach of contract, collect on open account

Electronic Data Involved: Emails

Lucas v. Old Navy, LLC, 2009 WL 1172710 (M.D. La. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued she was entitled to a presumption that defendant had constructive notice of the hanger on the floor that allegedly caused her injuries because defendant failed to preserve the surveillance tape which would have proven such notice, but where plaintiff failed to request preservation of the relevant tape and failed to notify defendant of her intent to sue resulting in the loss of the tape from the system after 60 days, and where plaintiff offered no evidence of defendant?s bad faith, court declined to rely on such a presumption and granted defendant?s motion for summary judgment

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance videotape

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL 1212809 (E.D. Mich. May 1, 2009)

Dec 01 2009

Key Insight: Where forensic examiner revealed evidence of defendants? data deletion to plaintiffs while bound by stipulated order requiring results of the examination to be reported to defendants first, but where the court found the stipulated order was focused on the discovery of actual data rather than the lack of data and that the examiner was therefore not in violation of the order, court reserved ruling on examiner?s motion for attorney?s fees stating that while the examiner?s actions did not rise to the level of contempt, they were not free from taint and that such actions ?[gave] the Court pause about granting [the examiner?s] motion

Nature of Case: Dispute over sales commissions

Electronic Data Involved: Email, ESI

Triple-I Corp. v. Hudson Assocs. Consulting, Inc., 2009 WL 1210882 (D. Kan. May 1, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions for production of unreadable cds where there was no indication that the issue was discussed prior to the filing of the motion and no evidence as to who was at fault but ordered defendants to make the records available in a readable format and, if electronic copies were not readable, to print the materials for production; for defendants’ failure to produce documents pursuant to court order and for ?evasive and inappropriate? responses to requests for clarification about that failure, court ordered monetary sanctions against defense counsel personally where the court determined such responses were the result of her tactical decisions

Nature of Case: Interference with contractual relationship and other claims

Electronic Data Involved: ESI

In re Application of Michael Wilson & Partners, Ltd., 2009 WL 119374 (D. Colo. Apr. 30, 2009)

Dec 01 2009

Key Insight: Reasoning that electronic storage devices ?perform the same function as did a file cabinet in the pre-electronic era? and that they must therefore be searched ?just as they would have had to do had all the information been printed out and stored in hard copy format? and also reasoning that ?[t]he fact that duplicate documents may have been stored and maintained in more than one place is irrelevant to the duty to search all locations,? court ordered respondents to subpoenas to conduct additional searches of all electronic storage devices in their possession at the time of their response; where the sharing of production costs had been ordered, court required requesting party to post $1 million pre-judgment cost bond in light of the ?circumstances of the case? including respondents? expenditure of more than $2.5 million and fears that the requesting party would dispute their share and attempt to avoid payment

Nature of Case: Litigation between an international law firm and a new firm comprised of its former employees related to the new firm?s alleged interference in business relationships and breach of certain duties

Electronic Data Involved: ESI

Surplus Source Group, LLC v. Mid-Am. Engine, 2009 WL 961207 (E.D. Tex. Apr. 8, 2009)

Dec 01 2009

Key Insight: Where the need for a third search of defendants? electronically stored information resulted from plaintiffs? delay in providing search terms, court ordered defendants to undertake third search, using terms provided by plaintiffs, but ordered plaintiffs to bear the cost of the third search, up to the amount equal to the second search, reasoning that such an order would essentially result in plaintiffs bearing the cost of the second search which was insufficient because of their delay

Nature of Case: Claims arising from defendants? alleged failure to split profits from sales of industrial equipment

Electronic Data Involved: ESI

Kotler v. Woods, 2009 WL 1011701 (E.D.N.Y. Apr. 15, 2009)

Dec 01 2009

Key Insight: Where petitioner challenged his conviction on grounds that the state destroyed material evidence in the form of cassette tapes containing the dictation of a detective?s report and therefore violated his due process rights, court concluded petitioner failed to demonstrate a Brady violation where petitioner failed to show that the evidence would have been favorable to him and would have altered the outcome of his trial and where the trial court gave an adverse inference instruction related to the loss of the tapes that also made a change in the outcome unlikely

Nature of Case: Petition for writ of habeus corpus

Electronic Data Involved: Cassette tapes

Plew v. Ltd. Brands, Inc., 2009WL 1119414 (S.D.N.Y. Apr. 23, 2009)

Dec 01 2009

Key Insight: Denying plaintiff?s motion to compel, court rejected plaintiff?s argument that emails sent to and from a non-party could not be protected as work product where email exchanges occurred at the behest of counsel, because of the relevant litigation, and where there was no indication that the communications were likely to be revealed to plaintiff or any other adversary of the defendant

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Hape v. State, 903 N.E. 2d 977 (Ind. Ct. App. Mar. 31, 2009)

Dec 01 2009

Key Insight: Where a jury discovered and considered text messages not authenticated separately from a properly admitted cell phone, court found that text messages must be separately authenticated before admission into evidence but declined to find grounds for reversal of defendant?s conviction where the error was harmless in the context of the other evidence against him

Nature of Case: Felony possession of methamphetamines

Electronic Data Involved: Text messages