Inspection – Page 2 – Electronic Discovery Law

Gateway Logistics, Inc. v. Smay, No. 12SA287, 2013 WL 1557840 (Colo. Apr. 15, 2013)

Dec 01 2013

Key Insight: Where, despite defendant?s assertion of a privacy interest in his and his wife?s (a non-party) electronic devices (computers and smartphone) and phone records, the trial court failed to conduct a proper balancing test before granting Plaintiff?s motion to compel inspection and production of the records, the Supreme Court found that the trial court had abused its discretion, that the invocation of a privacy right should have triggered analysis of the relevant balancing test, and that the wife?s non-party status was a factor for consideration, and vacated the trial court?s order and remanded for further consideration

Nature of Case: Breach of fiduciary duty and misappropriation of trade secrets

Electronic Data Involved: Personal computers, smartphone

Out of the Box Developers LLC v. Logicbit Corp., No. 10 CVS 8327, 2013 WL 3090303 (N.C. Sup. Ct. June 5, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought production of three versions of at-issue software but encountered repeated delays on the part of Defendants and where one Defendant eventually discovered that he was in fact in possession of (i.e., had preserved) the older version of the software that Plaintiffs requested but had failed to discover the information because he failed to make inquiry of ?others under his control,? including his law firm?s IT personnel, the court elected to impose ?the lesser sanction of taxing costs? and ordered that Defendants reimburse Plaintiff for its reasonable costs and expenses associated with its various motions to compel; Defendants were ordered to install a current copy of the software on a laptop provided by the Plaintiff, to provide Plaintiff with direct access to the customized version currently in use by the Defendant/law firm, and to produce to Plaintiff a copy of the recently discovered database backup containing the software as originally installed

Nature of Case: Claims that defendants “stole a series of [Plaintiff’s] software customizations” and incorporated them into their software

Electronic Data Involved: Versions of case management software (original, customized, and current)

Transamerica Life Ins. Co. v. Lambert, No. 4:12-CV-1253 CAS, 2013 WL 4028275 (E.D. Mo. Aug. 7, 2013)

Dec 01 2013

Key Insight: Court granted cross-claim plaintiff’s motion to compel cross-claim defendant to produce computer and cell phone used by decedent by shipping those devices from Jonesboro, Arkansas to St. Louis, Missouri (at cross-claim plaintiff’s expense) for forensic examination because cross-claim defendant’s production of copies of cell phone text messages and a non-forensic copy of the computer hard drive were insufficient to respond to plaintiff’s request for production of the devices themselves, since the copies did not allow for forensic examination of the devices, and because the slight inconvenience to cross-claim defendant in not having access to the cell phone and computer for a period of time was outweighed by the significant additional expense cross-claim plaintiff would incur if she were required to examine the devices in Jonesboro

Nature of Case: Probate matter

Electronic Data Involved: Computer and cell phone used by decedent

Sprint Nextel Corp. v. Middle Man, Inc., N. 12-2159-JTM, 2013 WL 1001851 (D. Kan. Mar. 13, 2013)

Dec 01 2013

Key Insight: Court was satisfied that defendants were aware of their legal duty to preserve evidence and noted that defendants had stated they had a diligent electronic record-keeping practice to track the company’s sales, purchases and inventory, and that the company would consent to an on-site physical inspection of its inventory; court was not persuaded that preservation order was appropriate or that it would serve any useful purpose in light of the parties’ existing legal obligations to preserve relevant evidence

Nature of Case: Trademark infringement, unlawful business practices

Electronic Data Involved: Sprint phones, ESI

Cefalu v. Holder, No. 12-0303 THE (JSC), 2013 WL 4102160 (N.D. Cal. Aug. 12, 2013)

Dec 01 2013

Key Insight: Where Defendant sought to compel production of plaintiff’s personal computers’ hard drives for inspection or to compel Plaintiff?s counsel to perform an independent search of the computer and other electronic devices to ensure that all responsive documents had been produced and where Defendant cited a prior search by Plaintiff?s counsel that yielded additional responsive documents and Plaintiff?s counsel?s admission that she had never examined the contents of Plaintiff?s personal computers, the court acknowledged that the rules do not create a right of direct access to a party?s electronic information systems, but, also acknowledged that the history of Plaintiff?s document productions suggested that he may not ?fully understand his search obligations,? and thus the court ordered Plaintiff?s counsel to ensure that all responsive documents on the computers and other devices were located and produced but declined to allow Defendant to conduct its own examination absent a demonstration of good cause

Electronic Data Involved: Contents of personal computer

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Thompson v. Am. Family Mut. Ins. Co., No. 2:09-CV-905 JCM (NJK), 2013 WL 164245 (D. Nev. Jan. 15, 2013)

Dec 01 2013

Key Insight: District court adopted in its entirety the recommendation of the magistrate judge that Plaintiff?s amended complaint be dismissed and that her answer to defendants? counterclaims be stricken as a sanction for willful and bad faith spoliation where Plaintiff gave her relevant computers to her brother who then took them to Indonesia where he lived and where this spoliation resulted in severe prejudice to defendants; the opinion also upheld a prior order of the magistrate imposing sanctions in the form of findings detrimental to the plaintiff for ?ongoing and repetitive violations of discovery obligations?; as to both the recommendation adopted and the order upheld, the court granted defendant?s request for attorneys fees

Nature of Case: Alleged violation of restrictive covenant with prior employer

Electronic Data Involved: Two computers

Townsend v. Ohio Dept. of Transp., No. 11AP-672, 2012 WL 2467047 (Ohio Ct. App. June 28, 2012)

Dec 01 2012

Key Insight: Trial court abused its discretion in denying motion to conduct forensic analysis of defendant?s email and electronic data systems where defendant?s employee admitted to sending a highly relevant email that was never produced and where defendant failed to establish that production ?would incur undue burden or expense?; court?s analysis included consideration of whether deleted emails were discoverable (yes) and the need for a protocol to protect the producing party?s privilege, confidential information

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Email

Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012)

Dec 01 2012

Key Insight: Where evidence indicated that defendant?s responses to discovery were incomplete, court ordered defendant to ?proceed with the forensic search of their computer systems using protocols agreed upon by the parties? but declined to compel defendant to bear the cost of the examination until final costs were known; defendant was also ordered to institute a litigation hold where defendant?s deposition testimony established that none had previously been issued

Nature of Case: Malpractice

Electronic Data Involved: ESI

Point 4 Data Corp. v. Tri-State Surgical Supply & Equip., Ltd., No. 11-CV-726 (CBA), 2012 WL 3705001 (E.D.N.Y. Aug. 27, 2012)

Dec 01 2012

Key Insight: Where, seeking data related to the number of times and when defendant logged onto plaintiff?s accounting system, defendant paid for an expert to restore damaged media but found no responsive data thereon and where plaintiff thereafter sought access to the damaged media to conduct its own search, the court indicated it would not allow a fishing expedition, but that if plaintiff wanted to bear the costs of duplicating defendant?s restoration and search efforts, it could retain a neutral third-party expert to do so, limited to a search of specifically identified folders; as to an inoperable drive that the parties previously agreed would be considered inaccessible, court would allow plaintiff to pay for neutral third party?s examination to perform a limited review; court declined to compel affidavit from defendant indicating specific steps to locate and preserve relevant data

Electronic Data Involved: Hard drive and copies of same

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