Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

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Grange Mut. Cas. Co. v. Mack, 2008 WL 744723 (6th Cir. Mar. 17, 2008)
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Peterson v. Tri-Country Metro. Transp. Dist. of Or., 2008 WL 723521 (D. Or. Mar. 14, 2008)
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Thomas v. IEM, Inc., 2008 WL 695230 (M.D. La. Mar. 12, 2008)
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Commerce Benefits Group, Inc. v. McKesson Corp., 2008 WL 657838 (N.D. Ohio Mar. 6, 2008)
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Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)
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Connor v. Sun Trust Bank, 2008 WL 623027 (N.D. Ga. Mar. 5, 2008)
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Am. Express Co. v. Goetz, 515 F.3d 156 (2nd Cir. 2008)
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Executive Air Taxi Corp. v. City of Bismarck, 2008 WL 564725 (8th Cir. Mar. 4, 2008)
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United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)
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APC Filtration, Inc. v. Becker, 2008 WL 548765 (N.D. Ill. Feb. 25, 2008)

Grange Mut. Cas. Co. v. Mack, 2008 WL 744723 (6th Cir. Mar. 17, 2008)

Key Insight: Sixth Circuit affirmed district court’s entry of default judgment and subsequent default award of $3,430,983.69 damages plus costs and attorneys’ fees as sanction for defendant’s egregious discovery abuse; among other things, defendant failed to comply with Parties? Agreed Order regarding electronic discovery, replaced company computers despite pending litigation, refused to produce home computer even though he admitted it had been used for business purposes, refused to produce key player?s computer, and failed to turn over all electronic evidence

Nature of Case: Fraud and RICO claims

Electronic Data Involved: Hard drives, email

Peterson v. Tri-Country Metro. Transp. Dist. of Or., 2008 WL 723521 (D. Or. Mar. 14, 2008)

Key Insight: Where emails and other documents stored on backup records were destroyed after complaint was filed, but reasons defendant began destroying such outdated mainframe reel-to-reel tapes at that time were (1) to reduce storage costs of up to $4,000 per year and (2) because data on tapes was no longer readable, and decision to destroy the unusable tapes not made by anyone who had anything to do with plaintiff, court concluded evidence did not support drawing any adverse inference from defendant?s intentional destruction of potentially probative evidence

Nature of Case: Claim for violation of FMLA

Electronic Data Involved: Emails stored on outdated mainframe reel-to-reel tapes

Thomas v. IEM, Inc., 2008 WL 695230 (M.D. La. Mar. 12, 2008)

Key Insight: Where plaintiff wrongly served Rule 45 subpoena on defendant in attempt to avoid discovery deadline, and subpoena was not limited in terms of time or subject matter but simply requested all emails contained in designated individuals’ in-boxes as of a particular date, and defendant set forth detailed account of burden and specific estimate of staff hours and cost that would be expended to comply with subpoena, court denied plaintiff’s motion to compel defendant’s compliance with subpoena

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Entire electronic mailboxes of key players

Commerce Benefits Group, Inc. v. McKesson Corp., 2008 WL 657838 (N.D. Ohio Mar. 6, 2008)

Key Insight: Where plaintiff did not demonstrate that focus of the defendants’ search was not reasonably directed toward finding responsive documents, and failed to establish that relevance and necessity of any further discovery into email backup tapes outweighed burden and expense that would ensue, not to mention further delay which would certainly follow, court denied motion to compel

Nature of Case: Breach of contract

Electronic Data Involved: ESI stored on backup tapes

Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)

Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence

Nature of Case: Prisoner asserted ? 1983 action against various prison defendants

Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff

Connor v. Sun Trust Bank, 2008 WL 623027 (N.D. Ga. Mar. 5, 2008)

Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead

Nature of Case: FMLA claims

Electronic Data Involved: Email

Executive Air Taxi Corp. v. City of Bismarck, 2008 WL 564725 (8th Cir. Mar. 4, 2008)

Key Insight: Eighth Circuit upheld district court’s order denying plaintiff’s request to have a third-party expert conduct forensic investigation of a City-owned computer to search for relevant emails that might not have been produced in discovery; district court’s findings that City had produced all relevant emails in hard copy and that forensic discovery could expose confidential or privileged materials were not clearly erroneous and in light of that factual premise there was no abuse of discretion

Nature of Case: Equal protection and substantive due process claims

Electronic Data Involved: Laptop computer of defendant’s employee

APC Filtration, Inc. v. Becker, 2008 WL 548765 (N.D. Ill. Feb. 25, 2008)

Key Insight: Court rejected defendants’ objections to magistrate judge’s December 21, 2008 order imposing sanctions of $99,462, upheld the December 21, 2008 order in its entirety, and ordered defendants to comply with the order by March 3, 2008

Nature of Case: Misappropriation of trade secrets and breach of employment contract

Electronic Data Involved: Computer

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