Appointed Expert – Page 3 – Electronic Discovery Law

Maggette v. BL Dev. Corp., 2010 WL 2010816 (N.D. Miss. May 17, 2010)

Dec 01 2010

Key Insight: For defendant?s egregious discovery violations uncovered with the assistance of a special master, including failing to adequately search for responsive materials and lying to the court about such searching and other, related topics, court indicated likelihood that it would find as a matter of law that an agency relationship existed between the offending defendant and another entity implicated in the underlying accident claims but, recognizing that ?responsibility for punishing BL for its discovery violations lies with the court, rather than the jury? declined to order an adverse inference and instead set the matter for hearing where proper sanctions and the egregious conduct of counsel would be discussed before a final determination was made

Nature of Case: Claims arising from bus accident

Electronic Data Involved: ESI, hard copy

Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267 F.R.D. 443 (D. Conn. 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? motion to compel forensic imaging of defendants? computers and electronic media devices by court-appointed, neutral forensic examiner upon showing that defendants likely misappropriated proprietary information from plaintiff, that at least one defendant breached his duty to preserve by discarding a relevant laptop, and where there was a ?sufficient nexus? between plaintiffs? claims and its need obtain the requested forensic images; court split cost 80% to defendant 20% to plaintiff citing defendant?s ?culpability in necessitating the expense? and set out the imaging protocol to be employed by an agreed upon expert

Nature of Case: Computer Fraud and Abuse Act

Electronic Data Involved: Forensic image of hard drives, electronic media devices

In re Stern, 321 S.W.3d 828 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: On petition for a writ of mandamus, the Supreme Court held that the trial court abused its discretion in ordering petitioner to produce communications between himself and nearly forty individuals where such discovery was not narrowly tailored to avoid the inclusion of ?tenuous information irrelevant to the establishment of jurisdiction? (the subject of petitioner?s special appearance) and held that the trial court abused its discretion in appointing a special master to conduct a forensic examination of petitioner?s hard drive where there was no showing that petitioner had defaulted in his discovery obligations, where there was no showing that a search of the hard drive would recover relevant information (particularly in light of petitioner?s use of web-based email), where the special master was appointed without following the procedures called for by the Texas Rules of Civil Procedure, where the special master?s broad authorization to search the hard drives (including the authority to choose search terms) amounted to an ?impermissible fishing expedition?, and where the trial court required no showing of the feasibility of retrieving the data by the party requesting the search

Nature of Case: Defamation

Electronic Data Involved: Emails, hard drive

Maggette v. BL Dev. Corp., 2010 WL 3522798 (N.D. Miss. Sept. 2, 2010)

Dec 01 2010

Key Insight: Where the defendant was warned that failure to uphold discovery obligations would result in severe sanctions and where, with the help of a special master, it was determined that defendant ?repeatedly and knowingly? concealed information from the court and acted in bad faith to prevent the discovery of relevant information, including interfering with counsel?s efforts to identify responsive information, the court ordered dispositive sanctions and found that an agency relationship existed as a matter of law between defendant and the bus company involved in the fatal accident that was the basis for plaintiffs? claims

Nature of Case: Claims arising from fatal bus accident

Electronic Data Involved: ESI

Coburn v. PN II, Inc., 2010 WL 3895764 (D. Nev. Sept. 30, 2010)

Dec 01 2010

Key Insight: Where forensic investigation of plaintiff?s home computer revealed use of CCleaner only days before the investigation was scheduled, court denied motion for sanctions where the evidence indicated it was unlikely that relevant documents were destroyed and where in light of plaintiff?s denial that she ran or directed someone else to run CCleaner, there was not clear and convincing evidence of a violation of the court?s Forensics Order; court denied sanctions despite existence of thousands of ?non-standard? files containing keyword hits which indicated files that had been deleted where plaintiff presented evidence that such files could have been created in the normal use of the computer and where the relevance of the files could not be established for purposes of a spoliation analysis; court denied sanctions for plaintiff?s deletion of emails from her work account where the emails were saved to her personal computer and produced and where defendant?s protests that more emails should have been produced were insufficient to establish intentional spoliation; for plaintiff?s admitted and intentional destruction of audio tapes, the court imposed a $1500 monetary sanction

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Veolia Transp. Servs., Inc. v. Does I-VII, 2010 WL 5151323 (D. Ariz. Dec. 13, 2010)

Dec 01 2010

Key Insight: Court granted motion to conduct pre-service discovery for the purpose of ascertaining the identity of the Doe defendants and, upon the parties agreement, ordered that a third-party expert conduct the discovery

Electronic Data Involved: Identity of Doe defendants

Partminer Worldwide, Inc. v. Siliconexpert Techs., Inc., No. 09-cv-00586-MSK-MJW, 2011 WL 587971 (D. Colo. Feb. 9, 2010)

Dec 01 2010

Key Insight: District Court declined to adopt recommendation for spoliation sanctions arising from defendant?s alleged bad faith destruction of a relevant email where the email was produced after the recommendation was made and thus ameliorated the need for finding of spoliation; in light of deficiencies revealed in defendants? search for responsive materials, court adopted recommendation that a forensic search of defendants? hard drives be undertaken, but reduced the scope of that search from all employees to those who ?received directly or indirectly, the customer information? at issue

Nature of Case: Claims arising from former employee?s alleged sharing of confidential information

Electronic Data Involved: Email

Stein v. Clinical Data, Inc., 2009 WL 3857445 (Mass. Super. Ct. October 2009

Dec 01 2009

Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things

Nature of Case: Breach of employment agreement

Electronic Data Involved: Emails

Bennett v. Martin, 2009 WL 4048111 (Ohio Ct. App. Nov. 24, 2009)

Dec 01 2009

Key Insight: Where defendants failed to adequately respond to discovery in defiance of two court orders, trial court did not abuse its discretion in ordering forensic imaging of certain of defendants? hard drives to ensure that all responsive documents had been produced but erred in ?not providing adequate protections to safeguard the confidentiality? of defendants? information; case was remanded to the trial court for consideration of the protocol described by the appellate court, i.e., the retention of an independent expert to retrieve potentially responsive files to be reviewed by the producing party before production to ensure protection of confidentiality and privilege

Nature of Case: Age discrimination

Electronic Data Involved: ESI, hard drives

In re Kessler, 2009 WL 2603104 (E.D.N.Y. Mar. 27, 2009)

Dec 01 2009

Key Insight: In a case arising from the fire of a boat while in the marina the district court rejected the magistrate?s recommendation in favor of spoliation sanctions for the marina?s failure to preserve surveillance video because the court found that the owner of the boat did not meet the burden of establishing the marina?s culpable destruction of relevant tape in violation of a duty to preserve where the footage ?self destructed approximately twenty-seven hours after it was recorded? when it was automatically recorded over in the regular course of the system?s activities; marina was ordered to bear the cost of conducting forensic examination of its hard drive to determine if fire footage could be retrieved

Nature of Case: Claims resulting from a vessel destroyed by fire while in the marina

Electronic Data Involved: Video surveillance

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