Local Rule – Page 8 – Electronic Discovery Law

State v. Bernini, 2009 WL 922471 (Ariz. Ct. App. Apr. 7, 2009)

Dec 01 2009

Key Insight: Court of Appeals found ?[t]he respondent judge erred as a matter of law and abused her discretion in ordering the state to produce source code material for the Intoxilyzer 8000 that it did not possess and had been unable to obtain, without any evidence the state had “better access” than defendants to what CMI maintains are trade secrets? and vacated trial court?s order directing the state to obtain the requested code

Nature of Case: Consolidated appeal of defendants charged with DUI

Electronic Data Involved: Source code of Intoxilyzer 8000

Crews v. Fishburne, 2009 WL 946876 (Cal. Ct. App. Apr. 9, 2009) (Unpublished)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in ordering terminating sanctions where plaintiff (and plaintiff?s counsel) delayed production of discovery, made a ?meaningless production? of an unusable CD upon defendant?s motion to compel, redacted documents without notification to defendants and refused to produce court ordered privilege log, and refused to produce unredacted documents despite a court order

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Mechling v. City of Monroe, 152 Wash. App. 830 (Wash. Ct. App. 2009)

Dec 01 2009

Key Insight: Court of appeals vacated (in part) judgment of trial court and ruled former statute ?does not exempt disclosure of personal email addresses used by elected officials to discuss city business? and that plaintiff was entitled to the requested email messages without the personal email addresses redacted; court also held that there was no express obligation to produce email records in electronic format, but that statutory duty to ?provide the fullest assistance? obligated trial court to consider reasonableness and feasibility of electronic production on remand; redacted emails need not be scanned and produced electronically

Nature of Case: Complaint pursuant to Public Disclosure Act

Electronic Data Involved: Email addresses, emails

MRT, Inc. v. Vounckx, 299 S.W.3d 500 (Tex. Ct. App. 2009)

Dec 01 2009

Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve

Nature of Case: Misrepresentations and fraudulent inducement

Electronic Data Involved: Backup tapes

Yeisley v. PA State Police, 2008 WL 906465 (M.D. Pa. Mar. 31, 2008)

Dec 01 2008

Key Insight: Denying plaintiff?s motion for sanctions based on non-production of email, court ordered defendants to promptly undertake requisite search of electronic records and warned: ?To the extent that electronic records may have been lost during the pendency of this litigation as a result of the failure to conduct an adequate search of this font of information prior to this time, sanctions may be appropriate.?

Nature of Case: Civil rights litigation

Electronic Data Involved: Email

Lowery v. County of Riley, 2008 WL 3562061 (D. Kan. Aug. 12, 2008)

Dec 01 2008

Key Insight: Court denied defendants’ motion to stay all discovery pending resolution of not-yet-filed petition for writ of certiorari to the U.S. Supreme Court, set Rule 16(b) scheduling conference, directed parties to conduct Rule 26(f) planning conference, and instructed parties to familiarize themselves with 2006 e-discovery amendments to FRCP, review ESI guidelines posted on court’s Internet website, and become knowledgeable about their clients’ information management systems and their operation, including how information is stored and retrieved

Nature of Case: Coercion, failure to investigate, fabrication of evidence, and malicious prosecution

Electronic Data Involved: ESI generally

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Oklahoma, ex rel. Edmondson, 2007 WL 1498973 (N.D. Okla. May 17, 2007)

Dec 01 2007

Key Insight: Where court had invited motion to address e-discovery issues in order to assure that e-discovery issues were moving foward, court granted motion and directed parties to the Guidelines for the Discovery of ESI for the District of Kansas to serve as guidance pendng enactment by the court of its own local rules and/or guidelines; court further noted that, although no formal preservation order had been entered, the duty to preserve evidence including ESI arises as soon as a party is aware the documentation may be relevant; court further warned parties to be “very cautious” in relying upon the safe harbor provision of new FRCP 37(e)

Nature of Case: Nuisance and CERCLA claims against owners of poultry growing operations

Electronic Data Involved: ESI

RLI Ins. Co. v. Indian River Sch. Dist., 2007 WL 3112417 (D. Del. Oct. 23, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff?s untimely motion to re-open discovery and to compel compliance with court?s ?Default Standard for Discovery of Electronic Documents? since plaintiff did not raise or discuss issue of e-discovery during initial conferences nor provide a compelling reason to re-open discovery other than its perceived lack of a significant amount of emails

Nature of Case: Negligent misrepresentation and breach of fiduciary duty

Electronic Data Involved: Email

Ky. Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing, 2006 WL 5097354 (E.D. Ky. Dec. 18, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff?s request that defendants produce metadata for all records maintained in electronic form produced to date, where plaintiff did not demonstrate a particularized need for metadata, the parties had no agreement about the format of production of electronic files, and plaintiff did not seek metadata until months after defendants had produced hard copy and electronic copies of documents; if plaintiff still desired metadata, court suggested plaintiff identify specific documents for which it was needed

Nature of Case: Antitrust and anti-competitive conspiracy claims

Electronic Data Involved: Metadata

Tag:Local Rule