Electronic Discovery Law – Page 322 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Naik v. Boehringer-Ingelheim Pharm., Inc., 2008 WL 4866015 (N.D. Ill. Jun. 19, 2008)

Dec 01 2008

Key Insight: Court declined to find waiver of privilege where privileged portion of email was inadvertently produced amidst 2,300 pages and where defendant took immediate action to assert privilege, reasserted privilege at deposition, and produced a revised privilege log within five days; court also noted lack of prejudice to plaintiffs

Nature of Case: Wrongful termination

Electronic Data Involved: Privileged email

Mabe v. Bell, 2008 WL 4911144 (D. Kan. Nov. 13, 2008)

Dec 01 2008

Key Insight: Court denied motion for expedited discovery to image defendants? and third parties? computers pursuant to Rule 45 where inspection sought evidence of defamation unrelated to plaintiff?s claims of fraud in connections with the sale of securities and other related fraud

Nature of Case: Securities fraud

Electronic Data Involved: Email, backup tapes, removable storage units

Kinnally v. Rogers Corp., 2008 WL 4850116 (D. Ariz. Nov. 7, 2008)

Dec 01 2008

Key Insight: Where plaintiffs offered only an inference that evidence was destroyed based on ?the mere lack of evidence? produced by defendant and where plaintiffs failed to take timely action to address discovery disputes, court denied plaintiffs? motion for an adverse inference based on spoliation; addressing plaintiffs? argument that defendant?s failure to issue a timely litigation hold notice resulted in destruction of evidence, court noted, ?[w]hile a party must ?put in place a ?litigation hold? to ensure the preservation of relevant documents, there is no requirement that it must be written.? [citation omitted]

Nature of Case: Age discrimination

Electronic Data Involved: ESI, email

Keithley v. Homestore.com, 2008 WL 4830752 (N.D. Cal. Nov. 6, 2008)

Dec 01 2008

Key Insight: Where late production of documents resulted in some prejudice to defendants but where prejudice was minor in light of limited relevance of the documents produced and their limited value to defendants? case and where defendants failed to show that documents missing from production were destroyed rather than ?simply lost? or a significant degree of resulting prejudice, court declined to impose dismissal or adverse inference but ordered monetary sanctions pursuant to Rule 37; monetary sanctions in the amount of $205,507.53 were subsequently ordered (Keithley v. Homestore.com, 2009 WL 55953 (N.D. Cal. Jan. 7, 2009))

Nature of Case: Patent Infringement

Electronic Data Involved: ESI, email

Psychopathic Records, Inc. v. Anderson, 2008 WL 4852915 (E.D. Mich. Nov. 7, 2008)

Dec 01 2008

Key Insight: Good cause existed to grant (in part) plaintiffs? motion for expedited discovery upon third party internet service providers prior to Rule 26(f) conference where plaintiff established direct connection between a particular email address and defendant, where email address was connected to the sale of allegedly infringing goods, and where ?very real danger? existed that ISPs would not preserve the information; court denied motion as to two email addresses where no showing of a connection to defendant or alleged infringement was made

Nature of Case: Copyright infringement

Electronic Data Involved: Email

Anderson v. Am. Airlines, Inc., 2008 WL 4816620 (N.D. Cal. Nov. 5, 2008)

Dec 01 2008

Key Insight: Plaintiff?s motion for contempt sanctions for discovery abuse denied where defendant indicated no documents responsive to subpoena existed, where search for documents entailed ?paper files, electronic files, hard drives, archives, computers, etc.?, where search was performed in presence of defendant?s paralegal and where defendant hired a contractor to search for archived emails but still found nothing; court found plaintiff?s reliance on ?passing statement? regarding email communication at deposition ?insufficient to prove that the purported emails ever existed?

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, email

Verigy US, Inc. v. Mayder, 2008 WL 4786621 (N.D. Cal. Oct. 30, 2008) (Not for Citation)

Dec 01 2008

Key Insight: Where defendant failed to produce website information because the information was maintained by and in the custody of a third party internet service provider, and because defendant could not access the materials because its account had expired, court acknowledged general rule that ?production is not ordered unless the responding party has exclusive control of the documents? and plaintiff?s failure to subpoena third party directly but nonetheless ordered defendants to ?take all necessary steps to obtain the requested documents? from third party and for the parties to split the cost

Nature of Case: Misappropriate of trade secrets

Electronic Data Involved: Website

Spieker v. Quest Cherokee, LLC, 2008 WL 4758064 (D. Kan. Oct. 30, 2008)

Dec 01 2008

Key Insight: Granting leave to refile, court denied plaintiff?s motion to compel production of emails for failure to show their relevance to class certification but rejected defendants? argument that $375,000 cost of production was unduly burdensome in light of amount in controversy where defendant argued claims of named plaintiffs were worth $100,000 or less but plaintiff argued claims of the class exceeded $5 million; court also stated that where defendant was in better position to identify search terms it should do so to reduce volume, that the cost of production versus the amount in controversy did not render email data ?not reasonably accessible,? and that parties should address Rule 502 in any future discussions regarding cost, among other things

Nature of Case: Class action for failure to pay royalties arising from oil and gas leases

Electronic Data Involved: Email

Air-Ride, Inc. v. DHL Express (USA), Inc., 2008 WL 4766832 (Ohio Ct. App. Nov. 3, 2008)

Dec 01 2008

Key Insight: Appellate court upheld waiver of privilege despite inadvertent production where defendant previously testified as to the subject of the email in affidavit, where the email was marked ?confidential,? indicating it had been reviewed by an attorney prior to production, where defendant learned of the disclosure from plaintiff and waited 2 weeks to seek judicial intervention, where the entirety of the email was produced rather than a part, and where its contents were ?at the heart of the matter? such that fairness mandated a finding of waiver

Nature of Case: Breach of contract

Electronic Data Involved: Email

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 4753358 (S.D. Fla. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendant produced electronic files in ?MAX format? with free ?Paperport? software to assist in its review but where plaintiff then expressed preference for hard copy documents and belief that electronic documents would cost triple the amount to review, court denied plaintiff?s motion to compel holding that defendants? production of files as kept in the usual course of business was sufficient; court also ruled that where plaintiff?s first request for documents did not specify production in electronic form, defendants need not reproduce hard copy documents electronically

Nature of Case: Patent infringement

Electronic Data Involved: ESI