Archive - December 2004

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Black & Veatch Int’l Co. v. Foster Wheeler Energy Corp., 211 F.R.D. 641 (D. Kan. 2002)
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Binswanger of Pa., Inc. v. Tru Serv Corp., 2003 WL 22429059 (E.D. Pa. May 21, 2003)
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Bertsch v. Duemeland, 639 N.W.2d 455 (N.D. 2002)
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Benton v. Allstate Ins. Co., 2001 WL 210685 (C.D. Cal. Feb. 26, 2001)
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BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)
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Armstrong v. Amstead Ind., Inc., 2004 WL 1497779 (N.D. Ill. July 2, 2004)
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Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27 (D.D.C. 2004)
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Anderson v. Crossroads Capital Partners, LLC, 2004 WL 256512 (D. Minn. Feb. 10, 2004)
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In re Amsted Ind., Inc. ERISA Litig., 2002 WL 31844956 (N.D. Ill. Dec. 18, 2002)
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Am. Bankers Ins. Co. of Fla. v. Caruth, 786 S.W.2d 427 (Tex. App. 1990)

Black & Veatch Int’l Co. v. Foster Wheeler Energy Corp., 211 F.R.D. 641 (D. Kan. 2002)

Key Insight: Plaintiff failed to comply with court order by making various misrepresentations about whether all original input files were produced and whether software program changed over time it was used; sanction in form of attorneys’ fees and costs warranted

Nature of Case: Construction litigation

Electronic Data Involved: Software program and input files used to make design calculations

Benton v. Allstate Ins. Co., 2001 WL 210685 (C.D. Cal. Feb. 26, 2001)

Key Insight: Plaintiff’s ex parte motion to continue summary judgment and for additional discovery of defendant’s computer system denied where prior Rule 56(f) continuance had been granted and no showing was made of specific evidence expected to be elicited

Nature of Case: Insureds sued insurer for breach of covenant of good faith and fair dealing and related torts

Electronic Data Involved: Insurer’s claims-handling computer system

BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)

Key Insight: Court awarded non-party its costs of production, but ruled that non-party was not entitled, under either Tex. R. Civ. P. 205.3 or 176.7, to recover attorneys’ fees incurred in responding to subpoena, noting that non-party obtained legal advice to protect its own interests, not to facilitate compliance with subpoena

Nature of Case: Construction litigation

Electronic Data Involved: Electronic data

Armstrong v. Amstead Ind., Inc., 2004 WL 1497779 (N.D. Ill. July 2, 2004)

Key Insight: Court denied plaintiffs’ motion for sanctions stemming from defendants’ failure to disclose various relevant documents until after the close of fact discovery and plaintiffs’ expert disclosures, though defendants provided the material to their experts; instead, plaintiffs’ experts would be allowed to supplement their reports to address the belatedly-produced material

Nature of Case: Class action alleging violations of ERISA

Electronic Data Involved: Spreadsheets and reports

Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27 (D.D.C. 2004)

Key Insight: Since defendant had destroyed electronic records and failed to produce the very records that would provide evidence of its contacts within D.C., even after being ordered by court to do so, court denied defendant’s motion to dismiss for lack of personal jurisdiction; court declined to impose any sanctions, but said plaintiff could bring a motion in the future

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Electronic information on servers

Anderson v. Crossroads Capital Partners, LLC, 2004 WL 256512 (D. Minn. Feb. 10, 2004)

Key Insight: Plaintiff’s use of Cyberscrub data wiping software prior to court-ordered inspection of her computer and after agreeing on the record that she would not purge her hard drive or delete any documents, and her misrepresentations about age of hard drive, were not sufficiently egregious to warrant dismissal but did warrant an adverse inference instruction

Nature of Case: Sexual harassment and whistleblower claims by former employee

Electronic Data Involved: Hard drive of plaintiff’s personal computer

In re Amsted Ind., Inc. ERISA Litig., 2002 WL 31844956 (N.D. Ill. Dec. 18, 2002)

Key Insight: Plaintiffs’ motion to retrieve email granted; defendants required to re-search backup tapes using broader subject matter and time period, and to search email folders of any relevant individual in same manner

Nature of Case: ESOP plan participants sued employer and ESOP for breach of fiduciary duty and other wrongs

Electronic Data Involved: Email and other computerized data

Am. Bankers Ins. Co. of Fla. v. Caruth, 786 S.W.2d 427 (Tex. App. 1990)

Key Insight: Entry of default judgment on issue of liability and imposition of other discovery sanctions against insurer for failure to produce computer data and other discovery abuses was not an abuse of discretion

Nature of Case: Insurance coverage

Electronic Data Involved: Database

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