Electronic Discovery Law – Page 363 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Armamburu v. Healthcare Fin. Servs., Inc., 2007 WL 2020181 (E.D.N.Y. July 6, 2007)

Dec 01 2007

Key Insight: Where defendant asserted that certain data was ?dumped? from its computer system on an ?automatic and periodic basis,? but failed to provide a date or time period when such data was deleted or state whether a diligent effort was made to obtain such information in either electronic or paper format, court found that further discovery was necessary before it could determine whether spoliation sanctions were appropriate and ordered defendant to provide information on when alleged ?data dump? occurred, what information was deleted, and whether backup tapes and/or paper records exist that may provide requested information

Nature of Case: Putative class action

Electronic Data Involved: Information pertaining to the number of prospective class members, including their names and addresses

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 1989752 (S.D. Ohio July 9, 2007)

Dec 01 2007

Key Insight: After conducting de novo review of the matters raised by defendant’s objections to magistrate judge’s May 22, 2007 order, district court adopted magistrate judge’s recommended sanction (i.e., denying defendant’s motion to dismiss and imposing monetary sanctions) and ordered defendant to file answer to complaint within 10 days

Nature of Case: UCC claims arising from defendant’s Internet-based check service

Electronic Data Involved: Databases

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 1514005 (S.D. Ohio May 22, 2007)

Dec 01 2007

Key Insight: Where magistrate judge found that defendant “deliberately and stubbornly refused to produce the most basic information about its Ohio contacts and has likely destroyed much of that information after it put those contacts directly at issue,” magistrate judge denied defendant’s motion to dismiss for lack of personal jurisdiction as least drastic discovery sanction and awarded plaintiff its reasonable attorneys’ fees and expenses incurred in connection with the sanctions motion

Nature of Case: UCC claims arising from defendant’s Internet-based check service

Electronic Data Involved: Database

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 1875928 (S.D. Ohio June 20, 2007)

Dec 01 2007

Key Insight: Court denied defendant’s motion for reconsideration of magistrate judge’s March 12, 2007 order awarding plaintiff $22,371 in expenses and attorney’s fees as sanction for defendant’s discovery violations

Nature of Case: UCC claims arising from defendant’s Internet-based check service

Electronic Data Involved: Database

Ameriwood Indus., Inc. v. Liberman, 2007 WL 685623 (E.D. Mo. Feb. 23, 2007)

Dec 01 2007

Key Insight: On joint motion for clarification of court’s December 27, 2006 order, court approved parties’ agreed search term protocol but denied plaintiff’s request for list of ?hits? generated by searches; court further approved joint request for expert to provide information concerning defendants’ usage of their computer equipment, specifically: (1) use of erasure software or ?defragmentation? software; (2) use of detachable, portable storage media to access or download files; (3) evidence of mass deletions of files; and (4) evidence of large gaps in the contents of the files

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives, deleted email and other files

Woodburn Const. Co. v. Encon Pacific, LLC, 2007 WL 1287845 (W.D. Wash. Apr. 30, 2007)

Dec 01 2007

Key Insight: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion

Nature of Case: Construction litigation

Electronic Data Involved: ESI

Hill v. Eddie Bauer, 2007 WL 1309536 (C.D. Cal. Mar. 29, 2007)

Dec 01 2007

Key Insight: Ruling on plaintiff’s motion to compel, court expressed dismay that parties had not addressed discovery of ESI given FRCP e-discovery amendments and fact that much of the evidence was in electronic format; court ordered parties to personally meet and confer to discuss a discovery plan addressing, among other things, electronic discovery, modifications to the Federal Rules, depositions, and the like, and lodge the proposed discovery plan by certain date

Nature of Case: Individual and class action alleging labor abuses

Electronic Data Involved: Sales information, employee information

Gragg v. Int’l Mgmt. Group, 2007 WL 1074894 (N.D.N.Y. Apr. 5, 2007)

Dec 01 2007

Key Insight: After weighing the four factors identified as relevant under the federal common law of waiver, and particularly given the casual nature of defendants’ efforts to insure against inadvertent disclosure, court found that inadvertent production of four privileged emails (of 200 total produced on CD-ROM) effected limited waiver; plaintiff’s counsel would be permitted to keep the privileged emails and to utilize them freely in connection with the pending litigation

Nature of Case: Breach of contract and fraud

Electronic Data Involved: Privileged emails

Frees, Inc. v. McMillian, 2007 WL 1308388 (W.D. La. May 1, 2007)

Dec 01 2007

Key Insight: District court upheld magistrate judge’s January 22, 2007 memorandum order and related protective order, as such orders were not clearly erroneous or contrary to law

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Former employee’s home computer and new work computer

Interface Sec. Sys., L.L.C. v. May, 2007 WL 1300394 (E.D. Mo. May 2, 2007)

Dec 01 2007

Key Insight: Court denied motion for expedited discovery but granted motion for preservation order since defendant did not raise any issues regarding the appropriateness of preservation of evidence and court agreed that “all documents, software and things” relating to the matter should be preserved

Nature of Case: Unfair competition

Electronic Data Involved: Documents, software and things