Electronic Discovery Law – Page 354 – Legal issues, news and best practices relating to the discovery of electronically stored information.

In re EZ Pay Servs., Inc., 380 B.R. 861 (Bankr. M.D. Fla. 2007)

Dec 01 2007

Key Insight: Court approved Trustee?s request for permission to pay computer forensics expert $70,000 as a necessary cost and expense of preserving the estate, where recovery of deleted electronic information was necessary to enable Trustee to locate and administer valuable assets of estate and to understand debtor’s prepetition transactions, and where expert?s services provided a concrete benefit for the estate since approximately $400,000 in assets was recovered by Trustee as a result

Nature of Case: Bankruptcy case

Electronic Data Involved: 14 hard drives; deleted data

Azimi v. United Parcel Serv., Inc., 2007 WL 2010937 (D. Kan. July 9, 2007)

Dec 01 2007

Key Insight: Where plaintiff needed requested information to compare his circumstances of disciplinary action and termination with others who held his position, and defendant’s undue burden objection rested on unsupported claim that it would take over 100 hours to retrieve information from various company databases, court overruled objection finding that defendant had not demonstrated undue burden: “At best, it has perhaps shown that compliance would be inconvenient and involve some expense.”

Nature of Case: Employment discrimination, wrongful termination

Electronic Data Involved: Computerized accident and driving histories of other employees

Peak Interests, LLC v. Tara Hills Villas, Inc., 2007 WL 2993817 (D. Neb. Oct. 11, 2007)

Dec 01 2007

Key Insight: Where plaintiff objected to producing laptop because it contained irrelevant confidential or proprietary information and promised to ?provide all requested data, in the electronic format in which it was created,? but production was not forthcoming, and, despite promise to do so plaintiff did not submit affidavit from computer consultant affirming that efforts to retrieve responsive information from laptop had been unsuccessful, court ordered plaintiff to deliver laptop to defense counsel for physical inspection and copying by a neutral third party; court restricted access to any non-responsive information retrieved to counsel of record, their experts, and necessary support staff

Nature of Case: Lease dispute

Electronic Data Involved: Laptop

Rouse v. II-VI, Inc., 2007 WL 2907935 (W.D. Pa. Oct. 1, 2007)

Dec 01 2007

Key Insight: Among other findings on plaintiff’s motion to compel, court concluded that keyword search performed by defendant was adequate given the circumstances of the case

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Williams v. ACS Consultant Co., Inc., 2007 WL 2822777 (E.D. Mich. Sept. 26, 2007)

Dec 01 2007

Key Insight: Although spoliation was shown based on individual plaintiff’s failure to return laptop to defendant for approximately seven months after court first ordered him to do so, destruction of files and other information and use of file-deletion and free-space wiping products on laptop, court denied motion to dismiss complaint as spoliation sanction because prejudice to defendant was not established — three months of discovery remained and it was not clear that defendant would not be able to obtain much of the evidence sought

Nature of Case: Racial discrimination, retaliation, hostile work environment and wrongful termination

Electronic Data Involved: Employer-issued laptop

Tomlinson v. El Paso Corp., 245 F.R.D. 474 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court rejected defendants’ claim that they had no control over third party’s ?computerized infrastructure? and ordered production of electronic pension plan records by defendants; because ERISA sets out employer’s responsibilities for the proper maintenance and retention of pension and welfare plan records and employer cannot delegate those duties, records maintained by third party were in “possession, custody or control” of defendants for purposes of discovery

Nature of Case: Claims under ERISA

Electronic Data Involved: Pension and welfare plan records maintained by third party

Tilton v. McGraw-Hill Cos., Inc., 2007 WL 3229157 (W.D. Wash. Oct. 30, 2007)

Dec 01 2007

Key Insight: Where defendants had not shown that plaintiff’s initial disclosures or discovery responses were incomplete or incorrect and parties were not subject to any court order requiring them to produce documents created after the discovery deadline, and applicable legal authority was scant and fairly debatable, court declined to decide whether plaintiff was required to produce emails created after the close of discovery and ruled that plaintiff?s conduct was not sanctionable

Nature of Case: Plaintiff sued publisher alleging breach of a promise to keep his name and employer confidential

Electronic Data Involved: Email created after close of discovery

Peterson v. Union Pacific R.R. Co., 2007 WL 3232501 (C.D. Ill. Nov. 1, 2007

Dec 01 2007

Key Insight: Court granted in part plaintiffs’ motion to enter and inspect crossing area and directed defendant to arrange for an employee to be on-site during the inspection to provide a download of all available date from event recorders and other components and equipment of the crossing signal system stored on-site; court denied motion to compel production of particular employee’s computer since the computer had been returned to a vendor and defendant had already produced a copy of computer’s hard drive

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

Hunts Point Realty Corp. v. Pacifico, 2007 WL 2304859 (N.Y. Sup. July 24, 2007)

Dec 01 2007

Key Insight: Although court concluded that plaintiff had not adequately proven damages under any theory and thus damage award was zero, court found that defendant’s “unabashed flaunting of this Court’s preservation order” in failing to preserve emails resulted in additional work by plaintiffs’ counsel and the court, and as sanction, court awarded attorneys’ fees and costs for all work done by counsel related to defendant’s failure to preserve email

Nature of Case: Breach of contract

Electronic Data Involved: Email

In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007)

Dec 01 2007

Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order

Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession

Electronic Data Involved: Email and other ESI