Electronic Discovery Law – Page 417 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Frye v. St. Thomas Health Servs., Inc., 2005 WL 5417506 (Tenn. Cir. Ct. Mar. 30, 2005)

Dec 01 2005

Key Insight: Court denied motion to compel production of defendant’s hard drives so that plaintiff’s computer forensics expert could search them for deleted emails since there was no evidence that defendant had consciously or purposely deleted emails and plaintiff had only “suspicions and allegations” which did not justify the costly and burdensome search requested

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2005 WL 4954351 (N.D. Ill. Feb. 11, 2005)

Dec 01 2005

Key Insight: Denying defendant’s motion for a new trial, court concluded that adverse inference jury instruction based upon defendant’s mistaken failure to suspend document retention policy that deleted email every 30 days was not misleading or unduly prejudicial

Nature of Case: Patent infringement

Electronic Data Involved: Email

Larson v. Bank One Corp., 2005 WL 4652509 (N.D. Ill. Aug. 18, 2005)

Dec 01 2005

Key Insight: Where defendant breached its duty to preserve by failing to establish a “comprehensive document retention policy” and by failing to properly disseminate the policy to its employees, and conduct evinced ?extraordinarily poor judgment? and ?gross negligence” but not willfulness or bad faith, magistrate recommended that prejudice to plaintiff could be remedied by precluding defendant from cross-examining plaintiff’s financial expert and by instructing the jury about the sanction

Nature of Case: Securities class action

Electronic Data Involved: Underlying data and calculations

Davila v. Patel, 2005 WL 2248350 (E.D. Pa. Sept. 13, 2005)

Dec 01 2005

Key Insight: Court ordered defendants to produce American College of Radiology reports during certain time frame, to produce all information pertaining to plaintiff contained in, or retrievable from, their computer systems, and, if requested by the United States, to make available for deposition persons with knowledge of the computer system maintained by hospital during certain time frame

Nature of Case: Medical malpractice

Electronic Data Involved: All information pertaining to plaintiff contained in, or retrievable from, defendants’ computer systems

Arista Records LLC v. Does 1-20, 2005 WL 3776346 (D. Colo. Nov. 7, 2005)

Dec 01 2005

Key Insight: Court granted plaintiffs’ ex parte application for leave to take immediate discovery from defendants’ Internet Service Provider, whose subscriber activity log files would allow plaintiffs to discover each defendant’s true name, address and other identifying information

Nature of Case: Copyright infringement

Electronic Data Involved: ISP’s subscriber activity logs

Ferrero v. Henderson, 2004 WL 1802134 (S.D. Ohio July 28, 2005)

Dec 01 2005

Key Insight: Where parties had settled the amount of attorney fees to be paid to plaintiff as sanction for defendant’s failure to produce crucial payroll records until first day of trial, court reconsidered and withdrew finding of bad faith on part of defense counsel since she had made at least some effort to reasonably investigate, and the failure to produce the material was blamed on two employees in defendant’s HR department

Nature of Case: Wrongful termination, FMLA claim

Electronic Data Involved: Payroll data

United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005)

Dec 01 2005

Key Insight: In connection with criminal defendant’s request for certain emails and correspondence, court held that the term “government” included all agencies and departments of the Executive Branch of the government and all subdivisions thereof and it was insufficient for Justice Department merely to state that certain documents were not in its possession and it was continuing to make inquiries; Justice Department ordered to immediately and by formal request in writing, demand that GSA conduct a thorough search and produce all relevant emails, including archived emails on employees’ hard drives

Nature of Case: Criminal prosecution for obstruction of justice

Electronic Data Involved: Email and archived email

Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005)

Dec 01 2005

Key Insight: Court ordered plaintiff to produce all materials that plaintiff’s counsel furnished to plaintiff’s testifying expert, regardless of privilege or claimed work product protection, including emails, summaries, spreadsheets and draft expert reports

Nature of Case: Employer sought to enforce restrictive covenants against former employees

Electronic Data Involved: Emails, spreadsheets, draft expert reports

Galvin v. Gillette Co., 2005 WL 1155253 (Mass. Super. Apr. 28, 2005)

Dec 01 2005

Key Insight: Where much of the material sought did not appear to touch on or be relevant to the matter under investigation by the Secretary, i.e., whether fraud may be present in the UBS or Goldman, Sachs fairness opinions based on information provided by Gillette, court quashed broad subpoena issued to Gillette without prejudice to the Secretary issuing a new subpoena more narrowly drafted

Nature of Case: Secretary of the Commonwealth of Massachusetts issued subpoena under state securities act in connection with pending merger

Electronic Data Involved: Email

Cook v. Deloitte & Touche, LLP, 2005 WL 2429422 (S.D.N.Y. Sept. 30, 2005)

Dec 01 2005

Key Insight: Rule 56(f) continuance not warranted where it was uncontested that defendant had produced all relevant electronic entries in its personnel database, and even if other emails existed in computer archives as alleged, plaintiff made no showing necessary to warrant their retrieval at this late date at defendant’s expense nor had plaintiff volunteered to foot the bill for doing so

Nature of Case: Employment discrimination

Electronic Data Involved: Email and electronic entries in personnel database