Electronic Discovery Law – Page 420 – Legal issues, news and best practices relating to the discovery of electronically stored information.

United States v. Mallinckrodt, Inc., 227 F.R.D. 295 (E.D. Mo. 2005)

Dec 01 2005

Key Insight: Inadvertent disclosure of government’s privileged litigation report by copying report onto CD-ROMs produced to over 50 defense attorneys did not effect waiver of attorney-client privilege where (1) government took reasonable precautions to prevent inadvertent disclosure by segregating privileged documents in extensive privilege review of more than 61,000 pages, (2) only one privileged document was inadvertently produced, (3) government acted promptly by alerting all counsel of inadvertent production within one month after learning of the disclosure, and (4) the interest of justice favored relieving the government of its error

Nature of Case: Environmental litigation

Electronic Data Involved: CD-ROM

Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee

Nature of Case: Divorce proceeding

Electronic Data Involved: Data on hard drives

Pamlab, L.L.C. v. Rite Aid Corp., 2005 WL 589573 (E.D. La. Mar. 3, 2005)

Dec 01 2005

Key Insight: Court modified Rule 30(b)(6) notice of deposition and ordered defendant to produce a representative to testify concerning various matters, including defendant’s document destruction and retention policies for paper and electronic information, and what information sought in particular interrogatory could be retrieved from computer system and what could only be retrieved manually

Nature of Case: Drug company claimed drug store chain improperly substituted one drug for another

Electronic Data Involved: Computer databases

DeBruhl v. DeBruhl, 608 S.E.2d 416 (Table, Text in WESTLAW), 2005 WL 351230 (N.C. Ct. App. Feb. 15, 2005) (Unpublished)

Dec 01 2005

Key Insight: When husband failed to produce, pursuant to subpoena, computer containing financial information at hearing, court allowed a computer technician to go to husband’s home to copy the hard drive, and suspended the hearing until a later date to allow review of the hard drive

Nature of Case: Divorce proceedings

Electronic Data Involved: Computer hard drive

Fast v. Mayer, 692 N.W.2d 138 (N.D. 2005)

Dec 01 2005

Key Insight: No abuse of discretion to deny mother’s request to conduct forensic examination of father’s computer; although mother alleged that computer contained pornography, there was no evidence the child had seen it and it would be impossible to definitively attribute the pornography to father, since other adults used the computer and certain components were salvaged from other computers

Nature of Case: Mother sought to require supervision of child’s visits with father

Electronic Data Involved: Computer hard drive

Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217 (Tex. App. 2005)

Dec 01 2005

Key Insight: Permanent injunction that restrained defendant from “[r]emoving or destroying any files, or copies of files, including but not limited to Defendants’ computer or computer files” was overbroad because it enjoined activities defendant had a legal right to perform, such as deleting records and files that had nothing to do with the subject litigation

Nature of Case: Company sued former employee and his competing business for misappropriation of trade secrets

Electronic Data Involved: Computer files

Allianz Ins. Co. v. Otero, 353 F. Supp. 2d 415 (S.D.N.Y. 2004)

Dec 01 2005

Key Insight: Where defendants maintained that there was more to a particular claim file than what was produced, that material was destroyed and that they were prejudiced, court denied defendants’ request for dismissal of all claims for negligent spoliation of evidence, finding that defendants had not established sufficient prejudice to warrant the extreme remedy sought

Nature of Case: Insurance coverage

Electronic Data Involved: Computer-generated claim file

Williams v. Mass. Mut. Life Ins. Co., 226 F.R.D. 144 (D. Mass. 2005)

Dec 01 2005

Key Insight: Court denied plaintiff’s request for forensic search of former employer’s information systems where plaintiff offered no credible evidence that defendants were unwilling to produce computer-generated documents or that defendants had withheld relevant information

Nature of Case: Wrongful termination, race discrimination

Electronic Data Involved: Email

Krausz Puente LLC v. Westall, 2005 WL 236862 (Cal. Ct. App. Jan. 25, 2005) (Unpublished)

Dec 01 2005

Key Insight: Trial judge did not err in imposing monetary sanctions and evidentiary sanction against individual defendant limiting the scope of his testimony, where defendant delayed for several days and deleted relevant computer files in violation of court’s order requiring defendant to “immediately make available to Plaintiff’s designated expert all computers, including hard drives and all other electronic storage media in [defendant’s] possession, custody and/or control”

Nature of Case: Breach of contract and fraud

Electronic Data Involved: 5,300 computer files

Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485 (4th Cir. 2005)

Dec 01 2005

Key Insight: Court imposed sanctions and allowed plaintiff to question defendant’s witnesses before the jury regarding its failure to disclose documents immediately, where plaintiff learned through depositions that a tape recording, the complete underwriting and claims file, and other electronic information had not yet been produced

Nature of Case: Insurance coverage

Electronic Data Involved: Tape recording and electronic information