Electronic Discovery Law – Page 299 – Legal issues, news and best practices relating to the discovery of electronically stored information.

U.S. v. Boyce, 2009 WL 1034775 (Apr. 17, 2009)

Dec 01 2009

Key Insight: Court ordered evidentiary hearing where defendant argued the case against him should be dismissed upon the police department?s inability to produce in-car videotape allegedly containing exculpatory evidence because of ?equipment problems? and where defendant asserted that factual issues needed to be resolved surrounding the department?s efforts to secure the footage and whether any procedure for preservation existed

Nature of Case: Possession with intent to distribute

Electronic Data Involved: Video tape

Asarco, Inc. v. U.S. Envtl. Prot. Agency, 2009 WL 1138830 (D.D.C. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued it made a sufficient showing of bad faith to justify discovery regarding the adequacy of defendant?s search and the exemptions claimed but where plaintiff presented no genuine issue of material fact to which discovery would be devoted and where the remedy for a deficient search is to remand to the agency for a more adequate search, court denied plaintiffs? motion to take discovery; where defendant used only one search term — ?recontamination? ? court ordered ?one last search? using the terms: ?recontaminate,? ?recontaminat,? ?recontamination,? and ?contaminate again?

Nature of Case: FOIA

Electronic Data Involved: ESI

Henderson v. U.S. Bank, N.A., 2009 WL 1152019 (E.D. Wis. Apr. 29, 2009)

Dec 01 2009

Key Insight: Stating that Rule 34 does not give a party the right to conduct their own search of an opposing party?s electronic devices and holding that counterclaim plaintiff must request specific categories of information and allow counterclaim-defendants to conduct their own search for responsive data, court denied counterclaim-defendants? motion to compel production of all computers, hard drives, and other devices containing electronically stored information

Nature of Case: Enforceability of confdientiality and non-compete agreements, misappropriation of confidential inforamtion

Electronic Data Involved: Computers, hard drives, electronic storage devices

In re Motor Fuel Temp. Sales Practices Litig., 2009 WL 959493 (D. Kan. Apr. 3, 2009)

Dec 01 2009

Key Insight: Court overruled defendants? objections that searching for pre-2001 paper documents would be overly burdensome and ordered production of boxes potentially containing relevant information, as maintained in the course of business, for inspection and identification of responsive materials to be copied, with no waiver of privilege as to documents determined to be privileged; acknowledging defendant?s burden in searching pre-2001 email where data was not easily accessible because of disparate email systems and back up procedures, court allowed plaintiffs, after reviewing hard copy, to specifically identify email or other ESI for production, if found, but did not order a search of all email; where Shell defendant proved undue burden in physically searching individual stations for responsive data, court limited search to ten locations but declined to find undue burden regarding the search of databases and ordered defendants to search the individual databases of 246 Shell stations for responsive information

Nature of Case: Claims arising from accusations that defendants sold fuel at a specified price without adjusting for temperature expansion

Electronic Data Involved: Hard copy, archived email, databases, ESI

Am. Family Mut. Ins., Co. v. Roth, 2009 WL 982788 (N.D. Ill. Feb. 20, 2009)

Dec 01 2009

Key Insight: Where defendant discarded a hard drive that had been ordered produced for inspection, court rejected evidence of defendant?s lack of ?know-how? or ?resources? to maintain the hard drive in light of the lack of expense or effort required beyond physical retention and held defendant in contempt of court; court also found grounds for contempt where evidence ordered destroyed or turned over to plaintiffs was discovered on defendants? hard drives upon forensic inspection; where plaintiffs presented ?clear and convincing evidence? that defendants intentionally destroyed evidence by discarding relevant hard drives subject to a duty to preserve, court found spoliation had occurred and ordered an adverse inference instruction but declined to order default judgment where prejudice did not render plaintiffs unable to prove their case

Nature of Case: Misappropriation of customer information

Electronic Data Involved: Hard drives, ESI

Thompson v. Commonwealth, 2009 WL 1025166 (Ky. App. Ct. Apr. 17, 2009)

Dec 01 2009

Key Insight: Appellate court upheld trial court?s admission of digital recordings into evidence where tapes were authenticated by officer?s testimony that that the device used for recording had been used more than 100 times and that that the recording was downloaded directly to a computer and then transferred to CDs specifically identified at trial, and where informant testified that the recordings ?fairly and accurately depicted the events of the [recorded transaction]?

Nature of Case: Criminal drug trafficking

Electronic Data Involved: Digital recordings of alleged drug sale to informant

Hearst v. State, 2009 WL 1037730 (N.Y. Sup. Ct. Apr. 16, 2009)

Dec 01 2009

Key Insight: Where government entities were not required to prepare any record not already possessed or maintained by such an entity in response to a FOIL request and where state agency argued a response to petitioner?s request would require such preparation to protect government employee?s social security numbers, court agreed with agency and denied petitioners? requests as stated but ordered production of data extracted using petitioners? suggested method, despite acknowledgement of inferiority of resulting information, where such extraction would substantially accomplish petitioners? objectives but maintain state employees? privacy protection

Nature of Case: FOIL request

Electronic Data Involved: ESI, metadata, databases

In re Tamer, 877 N.Y.S.2d 874 (Surr. Ct. N.Y. 2009)

Dec 01 2009

Key Insight: Finding electronic production sufficient to satisfy the relevant statute requiring production of documents as kept in the regular course of business or organized to correspond to the category of the request, court granted objectants motion to compel trustees to accept production in electronic form and not hard copy and ordered such production to be accompanied by an index identifying the document produced in response to each demand and the electronic file where the document was stored

Nature of Case: Contested accounting proceeding

Electronic Data Involved: Production of documents in electronic form

Mintel Int?l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D. Ill Apr. 17, 2009)

Dec 01 2009

Key Insight: District Court found Magistrate Judge?s decisions denying plaintiff?s motions to compel third-party?s production of forensic image of its computer systems or a report from those systems ?were neither clearly erroneous or contrary to law? where Magistrate denied the motions in light of plaintiffs lack of diligence, contradictory opinions from experts, and factual evidence indicating a minimal amount of relevant data on third-party?s system and where Magistrate was therefore within the scope of her discretion

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: ESI, forensic image of hard drive

In re Search of Kindhearts for Charitable Humanitarian Dev., 594 F. Supp. 855 (N.D. Ohio 2009)

Dec 01 2009

Key Insight: Finding the restrictions of a protective order preventing defendant?s access to its own electronic materials seized pursuant to a government investigation too onerous and unconstitutional in light of defendants need for access to assist in its defense, and where defendants sought only copies of the material seized such that the originals would remain preserved, court granted defendants motion to vacate or amend the protective order to allow access to the materials but indicated willingness to allow government to justify certain restrictions based on a showing of substantial need

Nature of Case: Challenge to governmental freeze on charity’s assets and seizure of documents and other tangible items pursuant to executive order

Electronic Data Involved: Copies of seized ESI