Electronic Discovery Law – Page 392 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (N.Y. Sup. Ct. 2006)

Dec 01 2006

Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted

Nature of Case: Fraud and breach of contract claims

Electronic Data Involved: Email and non-email electronic documents restored from backup tapes

On Time Aviation, Inc. v. Bombardier Capital, Inc., 2006 WL 2092075 (D. Conn. July 26, 2006)

Dec 01 2006

Key Insight: Court overruled defendants’ objections to magistrate’s discovery rulings, concluding that absence of particular email from production did not mean that expert had intentionally hidden or destroyed it, particularly when expert was not listed as a recipient and testified that he did not recall receiving it

Nature of Case: Breach of contract, fraud, negligence

Electronic Data Involved: Email

India Brewing, Inc. v. Miller Brewing Co., 237 F.R.D. 190 (E.D. Wis. 2006)

Dec 01 2006

Key Insight: Plaintiff not entitled to production of defendant’s document retention policy and information regarding computer systems because such information was unnecessary and irrelevant to claims and issues in litigation; court further ruled that defendant’s production in hard copy format satisfied its obligations under the rules: “To the extent that the documents IBI sought in its requests are kept in hard copy in the usual course of business, IBI is not entitled to any other format. To the extent that those documents kept in electronic form have been printed out and organized and labeled to correspond with the document request, again IBI is not entitled to any other format.”

Nature of Case: Breach of contract, fraudulent inducement, and negligent misrepresentation

Electronic Data Involved: Computer system information; document retention policy; electronic records

Tech. Recycling Corp. v. City of Taylor, 2006 WL 1792413 (6th Cir. June 28, 2006) (Unpublished)

Dec 01 2006

Key Insight: Sixth circuit affirmed dismissal of complaint as a discovery sanction under FRCP 37(b)(2)(C) and the award of all attorney fees to defendants under 42 U.S.C. ? 1988, where plaintiffs “repeatedly touted and promised to produce critical ‘smoking gun’ evidence, then failed or refused to produce it; belatedly produced an incomplete collection of evidence; falsely stated that they had produced all the evidence ordered; deliberately withheld evidence; strained credulity by claiming that they gave away original tapes of critical conversations, keeping none for themselves, and made no effort to get copies; asserted a nonsensical privilege as a reason for failing to produce more or better evidence of defendants’ allegedly defamatory statements; agreed to seek permission from the state court to produce financial and accounting documents, but never did so; and so on”

Nature of Case: Civil rights

Electronic Data Involved: Audio and videotapes supporting plaintiffs’ claims

Advante Int?l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006)

Dec 01 2006

Key Insight: Motion for forensic examination of opposing party’s computer hard drives denied where movant failed to provide any details about how the examination would be conducted and did not present specific, concrete evidence of concealment or destruction of evidence sufficient to justify the relief requested; instead, court found appropriate the “compromise” suggested by plaintiff that its own attorneys personally review the computers to ensure that any additional responsive documents that may exist in readable form were produced

Nature of Case: Misappropriation of intellectual property

Electronic Data Involved: Hard drives

In re NYSE Specialists Sec. Litig., 2006 WL 1704447 (S.D.N.Y. June 14, 2006)

Dec 01 2006

Key Insight: Court ordered that all hard copy documents be produced on single page tiff images, uploadable on both Opticon and Concordance, and that all electronic documents be produced in their native format with all associated metadata

Nature of Case: Securities class action

Electronic Data Involved: Electronic documents

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged

Nature of Case: Misappropriation of funds

Electronic Data Involved: Accounting files on hard drive

Smith v. Clark, 2006 WL 1656485 (S.D. Ga. June 12, 2006)

Dec 01 2006

Key Insight: Court ordered defendants to produce “an exact computer disc copy of the actual Quickbooks program used by Defendants to compile their data”

Nature of Case: Construction litigation

Electronic Data Involved: Quickbooks program

Lighthouse Community Church of God v. City of Southfield, 2006 WL 1662615 (E.D. Mich. June 12, 2006)

Dec 01 2006

Key Insight: Denying plaintiff’s request to inspect defendant’s computer system, court ordered defendant to produce all emails in its possession or control that were responsive to particular request for production, or provide a privilege log as to any emails claimed to be privileged; court warned defendants that failure to comply with the order could result in the imposition of “the most drastic sanctions permissible under Rule 37(b)(2), including striking their pleadings, entry of default judgment, and contempt of court sanctions”

Nature of Case: Following city’s issuance of citation for church’s use of building without certificate of occupancy, church asserted various constitutional claims

Electronic Data Involved: Email

Int’l Sec. Mgmt. Group, Inc. v. Sawyer, 2006 WL 1638537 (M.D. Tenn. June 6, 2006)

Dec 01 2006

Key Insight: Where court’s TRO (1) prohibited defendants from destroying relevant documents, materials, information or other property, including electronically stored information and (2) required defendants to immediately return any property of plaintiff in defendants’ possession, custody or control, including electronically stored information, court denied request to convert TRO into preliminary injunction as to (1) because no evidence was presented at the hearing suggesting that defendants had engaged in such unlawful destructive behavior in the past or that they would do so in the future, and as to (2) because defendants had already complied with the TRO requiring such action; court entered preliminary injunction as to other matters

Nature of Case: Breach of employment agreement

Electronic Data Involved: Email and electronic documents