Archive - December 1, 2005

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BDT Prods., Inc. v. Lexmark Int., Inc., 405 F.3d 415 (6th Cir. 2005)
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Papyrus Tech. Corp. v. New York Stock Exchange, Inc., 2005 WL 1606059 (S.D.N.Y. July 7, 2005)
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MDS Am., Inc. v MDS Int’l, S.A.R.I., 2005 WL 3107769 (W.D. Mich. Nov. 18, 2005)
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Bd. of Managers of Atrium Condo. v. West 79th St. Corp., 792 N.Y.S.2d 444 (N.Y. App. Div. 2005)
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Padilla v. Price Toyota, 2005 WL 6209494 (D.N.J. Oct. 28, 2005)
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McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)
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Inventory Locator Serv., LLC v. PartsBase, Inc., 2005 WL 6062855 (W.D. Tenn. Oct. 19, 2005)
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Frye v. St. Thomas Health Servs., 2005 WL 5417507 (Tenn. Cir. Ct. May 31, 2005)
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Frye v. St. Thomas Health Servs., Inc., 2005 WL 5417506 (Tenn. Cir. Ct. Mar. 30, 2005)
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Aero Products Int’l, Inc. v. Intex Recreation Corp., 2005 WL 4954351 (N.D. Ill. Feb. 11, 2005)

BDT Prods., Inc. v. Lexmark Int., Inc., 405 F.3d 415 (6th Cir. 2005)

Key Insight: Court approved recover of taxable costs, including ?electronic scanning and imaging of documents? where declarations established that the costs were ?necessarily incurred? and where ?electronic scanning and imaging could be interpreted as ?exemplification and copies of papers??costs specifically allowed under the relevant statute

Electronic Data Involved: ESI

Papyrus Tech. Corp. v. New York Stock Exchange, Inc., 2005 WL 1606059 (S.D.N.Y. July 7, 2005)

Key Insight: Plaintiff’s motion to compel production of additional computer files denied where plaintiff offered no basis either for excusing delay or for deeming the files in question to be so significant as to justify reopening discovery more than five months after its close

Electronic Data Involved: Computer files

MDS Am., Inc. v MDS Int’l, S.A.R.I., 2005 WL 3107769 (W.D. Mich. Nov. 18, 2005)

Key Insight: Denying plaintiff’s motion for entry of default judgment as sanction for tardy production of documents, court found that plaintiff had suffered little prejudice from delay and that defendant had worked diligently, did not willfully withhold responsive documents, and did not improperly modify or delete files froom hard drive before voluntarily producing it

Electronic Data Involved: Hard drive

Padilla v. Price Toyota, 2005 WL 6209494 (D.N.J. Oct. 28, 2005)

Key Insight: Court granted plaintiffs? motion to compel production of vehicle?s ?black box? where information sought was not available elsewhere and was necessary for expert analysis of airbag system despite defendants? arguments that data was irrelevant and unreliable and that retrieving the data would be unduly expensive because of need for technician to travel cross-country; regarding unreliability, court noted that a Daubert motion was not precluded in future

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Vehicle’s “black box”

McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)

Key Insight: Where plaintiff?s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants? backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants? efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval

Nature of Case: Disability discrimination

Electronic Data Involved: Emails, hard drives

Frye v. St. Thomas Health Servs., 2005 WL 5417507 (Tenn. Cir. Ct. May 31, 2005)

Key Insight: Court denied plaintiff’s motion to revise earlier court order denying production of computer hard drives for review by forensics expert, declining to adopt the law of Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) and finding that defendant had violated no duty to preserve since emails were deleted according to routine policy and at the time she filed the complaint, plaintiff made no request that emails be preserved

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

Frye v. St. Thomas Health Servs., Inc., 2005 WL 5417506 (Tenn. Cir. Ct. Mar. 30, 2005)

Key Insight: Court denied motion to compel production of defendant’s hard drives so that plaintiff’s computer forensics expert could search them for deleted emails since there was no evidence that defendant had consciously or purposely deleted emails and plaintiff had only “suspicions and allegations” which did not justify the costly and burdensome search requested

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2005 WL 4954351 (N.D. Ill. Feb. 11, 2005)

Key Insight: Denying defendant’s motion for a new trial, court concluded that adverse inference jury instruction based upon defendant’s mistaken failure to suspend document retention policy that deleted email every 30 days was not misleading or unduly prejudicial

Nature of Case: Patent infringement

Electronic Data Involved: Email

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