Electronic Discovery Law – Page 329 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Canon U.S.A., Inc. v. S.A.M., Inc., 2008 WL 2522087 (E.D. La. June 20, 2008)

Dec 01 2008

Key Insight: Where owner of defendant SAM admitted that boxes of SAM’s files and SAM’s server were stored in his home, but he had not affirmatively searched the boxes or server on his own for responsive information, and indicated, rather, that his wife and son looked through the documents when they could, court found discovery responses insufficient and ordered SAM to provide supplemental responses within 15 days; court further ordered SAM to hire a qualified third-party forensic computer specialist to conduct a search of SAM’s computer server since it was unclear whether owner?s son had the technological know-how to conduct a comprehensive search and owner had treated discovery requests ?lackadaisically?

Nature of Case: Breach of Dealer and Security Agreements

Electronic Data Involved: Paper and electronic documents, computer server

Peterson v. Union Pacific R.R. Co., 2008 WL 1930453 (C.D. Ill. May 1, 2008)

Dec 01 2008

Key Insight: Court denied plaintiffs’ request for sanctions, additional depositions and for an order compelling production of electronic data and signal plans in light of plaintiffs’ failure to diligently pursue such requests and failure to establish need for additional discovery at late stage of litigation; court granted plaintiffs opportunity to show that motion was substantially justified and deferred consideration of defendant’s request for expenses incurred in opposing motion

Nature of Case: Claims arising from collision between freight train and automobile

Electronic Data Involved: Data from event recorders and other components and equipment of the crossing signal system

Yu v. New York City Hous. Dev. Corp., 2008 WL 2152138 (S.D.N.Y. May 20, 2008)

Dec 01 2008

Key Insight: Ruling on various discovery matters, court noted plaintiff?s belated complaint that documents were not produced in ESI format and defendants? offer to convert their document production into OCR files, ?a more searchable form than the PDF format it originally provided,? and ordered plaintiff to advise defense counsel within three days if he desired such conversion; court further noted that plaintiff?s request for email was overbroad and that he had failed to justify requiring defendants to undertake a large-scale search of their backup tapes; court further ordered plaintiff to return employer-issued laptop computer to defendant

Nature of Case: Employment litigation

Electronic Data Involved: Email, laptop

Huang v. Gateway Hotel Holdings, 2008 WL 2486030 (E.D. Mo. June 18, 2008)

Dec 01 2008

Key Insight: Court ruled that plaintiffs were not required to produce for forensic inspection their ?desktop computers, cell phones, e-mail machines, laptop computers, mobile phones, ESI storage media, handheld computers and personal digital assistants,? but ordered plaintiffs determine which plaintiffs owned such devices and to produce a list of names and equipment to defendant within 20 days, and defendant would be allowed to re-file the discovery request with a showing of need; court further ruled that defendant need not produce pay and time records in an accessible electronic format but gave plaintiffs leave to re-file motion upon a showing that defendant had not supplied all available pay and time records

Nature of Case: FLSA claims, retaliation

Electronic Data Involved: Computers, cell phones and ESI storage devices used by plaintiffs

WIREdata, Inc. v. Village of Sussex, 751 N.W.2d 736 (Wis. 2008)

Dec 01 2008

Key Insight: Wisconsin Supreme Court disagreed with certain of the court of appeals’ specific holdings, including: that municipalities denied open records requests of WIREdata and, thus, violated open records law; that PDFs were insufficient to comply with such open records requests; and that open records law required access to computerized database; decision of court of appeals reversed in part and affirmed in part, and cases remanded to trial courts

Nature of Case: Company sued municipalities under Wisconsin’s Open Records Law

Electronic Data Involved: Database containing property assessment records

Sprenger v. Rector of Va. Tech, 2008 WL 2465236 (W.D. Va. June 17, 2008)

Dec 01 2008

Key Insight: Where factual record was sparse and consisted solely of employer’s internet and email use policy, and no information was provided regarding knowledge, implementation, or enforcement of policy, court observed it had facts to determine only one of the four factors set out in In Re Asia Global Crossing, Ltd ., 322 B.R. 247 (Bankr. S.D.N.Y. 2005) and found that defendant had failed to meet its burden of demonstrating waiver of marital privilege; court quashed subpoena to plaintiff?s husband?s employer

Nature of Case: Employee alleged civil rights violations and violations of ADA and FMLA

Electronic Data Involved: ?[A]ll electronically stored information on all computers, laptops, PDA’s, portable media or other devices? utilized by plaintiff’s husband at his place of work relating to plaintiff’s claims

Permasteelisa CS Corp. v. Airolite Co., LLC, 2008 WL 2491747 (S.D. Ohio June 18, 2008)

Dec 01 2008

Key Insight: Court denied motion for adverse inference brought by plaintiff under FRCP 51 one week before bench trial and based on destruction and replacement of computers allegedly containing relevant emails, finding that plaintiff had waived right to seek adverse inference since plaintiff knew about alleged spoliation for over a year, had plenty of time to move for discovery sanctions or raise issue in final pretrial order, and offered no explanation for delay in bringing matter to court?s attention

Nature of Case: Plaintiff alleged fraudulent transfer of assets

Electronic Data Involved: Emails, discarded computers

Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2008 WL 2487835 (W.D. Pa. June 16, 2008)

Dec 01 2008

Key Insight: Where defendant had produced significant number of requested documents and ESI ?on a rolling basis? but production was still not complete four months past original deadline and defendant claimed its vendor had just provided another 179,180 ESI documents, court struck compromise between respective deadlines urged by parties (August 15 and June 30, 2008) and ordered defendant to complete its production on or before July 23, 2008; court also issued stern warning that it would not hesitate to impose sanctions in the future for any discovery abuses

Nature of Case: Antitrust and unfair competition claims

Electronic Data Involved: ESI

Sedona Corp. v. Open Solutions, Inc., 249 F.R.D. 19 (D. Conn. 2008)

Dec 01 2008

Key Insight: Where plaintiff argued that defendant’s search for responsive documents was insufficient insofar as it was limited to search of computers of seven employees listed in defendant’s Rule 26(a) disclosure using five search terms, and defendant represented that: (1) it searched records of employees who were principally involved with project, (2) it used search terms that would reasonably lead to responsive documents without also producing volumes of unrelated documents, (3) in addition to conducting computer-based search, it also asked employees to search their electronic and physical records; (4) there were no other locations where responsive documents might be located; and (5) it did not have any backup tapes to search as its attempts to restore lost data had failed, court found defendant had conducted reasonable search for responsive documents and denied plaintiff?s motion to compel broader search

Nature of Case: Contract dispute

Electronic Data Involved: Email and other ESI

DL v. Dist. of Columbia, 251 F.R.D. 38 (D.D.C. 2008)

Dec 01 2008

Key Insight: Where District’s discovery responses were insufficient, objections unfounded, and “rolling” production of documents spanned two years with ten supplemental responses, and where plaintiffs presented evidence that District had failed to give witnesses timely instructions for preserving and producing relevant email, court ordered District to review each of plaintiffs’ document requests, perform a complete and thorough search for responsive documents (including emails and faxes), and provide responsive documents to plaintiffs; court further awarded plaintiffs their reasonable attorneys’ fees and expenses in bringing motion, and ruled that District would be required, upon completion of discovery, to certify to court that it has responded fully to all document requests and that no other responsive documents exist as of time of certification

Nature of Case: Plaintiffs alleged that District violated Individuals with Disabilities and Education Act

Electronic Data Involved: Email