Electronic Discovery Law – Page 330 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Beem v. County of Madison, 2008 WL 2561110 (S.D. Ill. June 25, 2008)

Dec 01 2008

Key Insight: Noting that case involved the operation of a government office, and images were contained within a government computer where there could be no expectation of privacy (particularly not when it is alleged that images were already seen by plaintiff and others), and pornographic images were clearly relevant if not ?res gestae,? court overruled County?s objections and ordered County to (1) provide plaintiff with copies of all of pornographic images from criminal investigation that were in its custody and control; and (2) allow plaintiff’s counsel and a computer forensics specialist access to the hard drive of supervisor?s work computer, so that all responsive images could be copied in electronic format for plaintiff’s counsel

Nature of Case: Plaintiff alleged she was required to work in a sexually hostile environment, and specifically that she was exposed to extreme, graphic and debasing computer/internet pornography contained in her supervisor’s office computer

Electronic Data Involved: Pornographic images stored on supervisor’s office computer

John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008)

Dec 01 2008

Key Insight: Applying a five-factor balancing test and in light of significant confidentiality and federalism concerns present in the case, Sixth Circuit concluded that certain aspects of district court’s orders constituted a ?demonstrable abuse of discretion,? and granted, in part, defendants? petition for mandamus and set aside those provisions of the district court’s orders that required forensic imaging of state-owned and privately owned computers, including the provisions that required U.S. Marshal or his designee to assist plaintiffs’ computer expert in execution of orders

Nature of Case: Class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services

Electronic Data Involved: State-owned and privately owned computers

Ogin v. Ahmed, 563 F.Supp.2d 539 (M.D. Pa. 2008)

Dec 01 2008

Key Insight: Where driver?s logs were relevant to plaintiff?s claims and defendants had notice of litigation and request to preserve them, but unilaterally determined that logs more than eight days prior to accident were irrelevant and destroyed them in the ?ordinary course of business,? court found that defendants actually suppressed and withheld driver’s logs and that adverse inference instruction was least severe and most appropriate sanction warranted under circumstances; court criticized defendants for not identifying date of destruction, individual responsible for such destruction, or time frame for such destruction pursuant to their retention policy and noted that defendants had not attached their retention policy as an exhibit to any filing or described any details of their retention policy

Nature of Case: Personal injury claims stemming from vehicle accident involving commercial tractor trailer and Jeep Wrangler

Electronic Data Involved: Computerized driver’s logs

Miyano Mach. USA, Inc. v. Miyanohitec Mach., Inc., 2008 WL 2364610 (N.D. Ill. June 6, 2008)

Dec 01 2008

Key Insight: Court applied balancing test and found that plaintiff?s inadvertent production of single privileged email on CD among 22,000 pages of documents did not effect waiver given expedited nature of discovery, scope of documents produced, limited extent of disclosure and lack of any demonstrable prejudice to defendants

Nature of Case: Trademark infringement, cybersquatting, unfair competition, unfair trade practices

Electronic Data Involved: Privileged email

Whitney v. JetBlue Airways Corp., 2008 WL 2156324 (E.D.N.Y. Apr. 29, 2008)

Dec 01 2008

Key Insight: Where handwritten IIR was included with numerous other similar documents and destroyed en masse by airline under document retention policy, court found that, although there was a ?disturbing amount of carelessness on defendant’s part? in its retention and production of the IIRs, plaintiff had not demonstrated that handwritten IIR would have been favorable to her case or that she was prejudiced by its absence; accordingly, court declined to impose any spoliation sanctions but awarded plaintiff her fees and costs in connection with motion

Nature of Case: Airline passenger allegedly injured by another passenger sued airline claiming negligent failure to protect and gross negligence

Electronic Data Involved: Original handwritten ?Inflight Irregularity Report? and conflicting electronic versions of same

Ex Parte Vulcan Materials Co., 2008 WL 1838309 (Ala. Apr. 25, 2008)

Dec 01 2008

Key Insight: Adopting the same approach as that in Ex parte Cooper Tire & Rubber Co., 2007 WL 3121813 (Ala. Oct. 26, 2007), Alabama Supreme Court directed trial court to reconsider Vulcan?s motion for a protective order as to emails sought in light of FRCP 26(b)(2)(B) and Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) and in light of Vulcan?s arguments that the requested emails likely constitute work product and would not likely lead to relevant information

Nature of Case: Company petitioned for writ of mandamus seeking review of trial court?s order on post-trial discovery related to motion for remittitur of punitive damages awarded in underlying action for breach of contract, tortious interference with contractual relations, and civil conspiracy

Electronic Data Involved: Email

Yeisley v. PA State Police, 2008 WL 906465 (M.D. Pa. Mar. 31, 2008)

Dec 01 2008

Key Insight: Denying plaintiff?s motion for sanctions based on non-production of email, court ordered defendants to promptly undertake requisite search of electronic records and warned: ?To the extent that electronic records may have been lost during the pendency of this litigation as a result of the failure to conduct an adequate search of this font of information prior to this time, sanctions may be appropriate.?

Nature of Case: Civil rights litigation

Electronic Data Involved: Email

ClearOne Communications, Inc. v. Chiang, 2008 WL 2227556 (D. Utah May 28, 2008)

Dec 01 2008

Key Insight: Where degree and substantiality of similarity between parties’ respective source codes was at issue, court found that the WideBand source code was directly relevant to whether copying had occurred and ordered the Wideband defendants to produce the source code in its entirety

Nature of Case: Copyright infringement

Electronic Data Involved: Source code

Kallas v. Carnival Corp., 2008 WL 2222152 (S.D. Fla. May 27, 2008)

Dec 01 2008

Key Insight: Where plaintiff supported class certification motion with affidavits prepared by paralegals who conducted interviews with potential class members, court found that such affirmative use of work product opened door to defendant’s attempt to verify accuracy of investigation, to discover flaws, and to obtain if possible information that could impeach paralegals’ testimony; court ordered plaintiff to produce memo to file itemizing questions to be propounded to interviewees, completed form questionnaires with handwritten notations used in survey, and memoranda or handwritten notations generated by affiants during course of survey or thereafter to memorialize factual information obtained; database itself retained work product protection and plaintiff was not required to produce entire printout of database beyond those portions that plaintiffs intended to rely upon and had been produced

Nature of Case: Class action brought by passengers who had suffered symptoms associated with a spread of Norovirus

Electronic Data Involved: Epi Info database, questionnaires and underlying relevant data

Margel v. E.G.L. Gem Lab Ltd., 2008 WL 2224288 (S.D.N.Y. May 29, 2008)

Dec 01 2008

Key Insight: Where information maintained in electronic database was necessarily in a form that was not identical to report prepared on basis of that data and produced in discovery, and defendant did not claim that database was “not reasonably accessible,” court ordered defendant to produce or make otherwise available that part of electronic database that evidenced the issuance of certificates during relevant time frame

Nature of Case: Action among gem grading laboratories concerning the right to use certain trademarks in the U.S. and the right to issue grading certificates bearing those marks

Electronic Data Involved: Database containing information used to prepare report produced by defendant in discovery