Electronic Discovery Law – Page 419 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Appraisal Mgmt. Co. III v. FNC, Inc., 2005 WL 3088561 (N.D. Ohio Nov. 17, 2005)

Dec 01 2005

Key Insight: Court dismissed complaint as discovery sanction finding that: (1) plaintiff’s failure to cooperate in discovery was willful, (2) plaintiff’s conduct had prejudiced the defendant by impairing its ability to prepare its defense, (3) plaintiff had received sufficient warnings that its failure to cooperate could lead to dismissal, and (4) lesser sanctions would not protect the integrity of pretrial procedures or ameliorate the prejudice already visited upon the defendant

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Email and computer code

Harbuck v. Teets, 2005 WL 2510229 (11th Cir. Oct. 12, 2005)

Dec 01 2005

Key Insight: District court did not abuse its discretion where, in course of discovery dispute, it ordered both parties to submit their copies of data to the district court’s Information Technology personnel to see if the material could be retrieved, and denied plaintiff’s motion to compel when court’s personnel had no problems retrieving the data

Nature of Case: Employment discrimination

Electronic Data Involved: Email and electronic documents

Clark Constr. Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D. Tenn. 2005)

Dec 01 2005

Key Insight: Court imposed sanctions against city in the form of a rebuttable adverse inference, and fees and costs related to the discovery dispute, based upon city’s grossly negligent failure to institute litigation hold and consequent destruction of relevant hard copy documents

Nature of Case: Breach of contract, negligent misrepresentation

Electronic Data Involved: Email printouts and other hard copy documents

Cahill v. Doe, 879 A.2d 943 (Del. Super. Ct. 2005)

Dec 01 2005

Key Insight: Court denied John Doe’s motion for protective order preventing internet service provider from disclosing his identity, finding that (1) plaintiffs had, in good faith, alleged that John Doe had used the internet as a tool for defamation, (2) the identifying information sought was directly and materially related to thir claim, and (3) the information could not be obtained from any other source

Nature of Case: Elected town council member and wife sued anonymous user of an internet “blog” who posted defamatory statements about plaintiffs on blog

Electronic Data Involved: Blog posting

Advantacare Health Partners, LP v. Access IV, 2005 WL 1398641 (N.D. Cal. June 14, 2005) (Unpublished)

Dec 01 2005

Key Insight: Court denied individual defendant’s motion for reconsideration of default judgment entered against her and other defendants for continued destruction of evidence and continued possession of plaintiff’s proprietary files; although there was no evidence that individual defendant personally engaged in wrongful acts, she was not insulated by simply leaving compliance with court orders to other defendant; further, individual had numerous opportunities to disavow knowledge of misconduct or detail what efforts she personally took to comply with court orders but never did so

Nature of Case: Misapproriation of trade secrets and related torts

Electronic Data Involved: Proprietary information in electronic form

TIG Ins. Co. v. Premier Parks, Inc., 2005 WL 468300 (Del. Super. Ct. Mar. 1, 2005) (Unpublished)

Dec 01 2005

Key Insight: Where insurer, in course of attempting to comply with discovery order, realized it had no electronic mechanism to retrieve case files based on whether a class was certified, but it could sort files by amount expended, court modified discovery order because it would have inflicted a substantial burden upon the insurer and the information produced would almost certainly be irrelevant

Nature of Case: Park operator alleged insurer failed to provide adequate counsel to defend a class action discrimination suit

Electronic Data Involved: Case file data

BG Real Estate Servs., Inc. v. Am. Equity Ins. Co., 2005 WL 1309048 (E.D. La. May 18, 2005)

Dec 01 2005

Key Insight: Request for production of “computer hard drive” was overly broad and responding party need not produce entire hard drive; however, to the extent that hard drive contained non-privileged items that were responsive to other requests as to which responding party’s objections were not sustained, such items should be produced

Nature of Case: Insurance coverage and unauthorized settlement

Electronic Data Involved: Hard drive

Public Relations Soc’y of Am., Inc. v. Road Runner High Speed Online, 799 N.Y.S.2d 847 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Finding that individual had stated cognizable defamation claim against anonymous author of offending email, court denied email author?s application to vacate order requiring internet service provider to disclose email account information

Nature of Case: Defamation claim based on offending email message

Electronic Data Involved: Email author identity

Barton v. U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005)

Dec 01 2005

Key Insight: Ninth circuit granted writ of mandamus reversing district court’s order compelling plaintiffs to produce their answers to law firm’s internet questionnaire; although questionnaire disclaimed any formation of an attorney-client relationship, it did not disclaim confidentiality, and, under California law, prospective clients’ communications with a view to obtaining legal services were covered by the attorney-client privilege

Nature of Case: Users of antidepressant sued manufacturer of drug

Electronic Data Involved: Law firm’s questionnaires regarding drug which were completed and submitted to the law firm on the internet

Banks v. United States, 2005 WL 974723 (W.D. Wash. Mar. 22, 2005)

Dec 01 2005

Key Insight: Email between paralegal for U.S. Attorney’s Office and medical expert constituted work product, and inadvertent disclosure of email did not waive work product immunity under Ninth Circuit’s five-factor test, which balances: (1) the reasonableness of precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness

Nature of Case: Medical malpractice

Electronic Data Involved: Email