Archive: December 1, 2005

1
Clark Constr. Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D. Tenn. 2005)
2
Cahill v. Doe, 879 A.2d 943 (Del. Super. Ct. 2005)
3
Advantacare Health Partners, LP v. Access IV, 2005 WL 1398641 (N.D. Cal. June 14, 2005) (Unpublished)
4
TIG Ins. Co. v. Premier Parks, Inc., 2005 WL 468300 (Del. Super. Ct. Mar. 1, 2005) (Unpublished)
5
BG Real Estate Servs., Inc. v. Am. Equity Ins. Co., 2005 WL 1309048 (E.D. La. May 18, 2005)
6
Public Relations Soc’y of Am., Inc. v. Road Runner High Speed Online, 799 N.Y.S.2d 847 (N.Y. Sup. Ct. 2005)
7
Barton v. U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005)
8
Banks v. United States, 2005 WL 974723 (W.D. Wash. Mar. 22, 2005)
9
United States v. Mallinckrodt, Inc., 227 F.R.D. 295 (E.D. Mo. 2005)
10
Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005)

Clark Constr. Group, Inc. v. City of Memphis, 229 F.R.D. 131 (W.D. Tenn. 2005)

Key Insight: Court imposed sanctions against city in the form of a rebuttable adverse inference, and fees and costs related to the discovery dispute, based upon city’s grossly negligent failure to institute litigation hold and consequent destruction of relevant hard copy documents

Nature of Case: Breach of contract, negligent misrepresentation

Electronic Data Involved: Email printouts and other hard copy documents

Cahill v. Doe, 879 A.2d 943 (Del. Super. Ct. 2005)

Key Insight: Court denied John Doe’s motion for protective order preventing internet service provider from disclosing his identity, finding that (1) plaintiffs had, in good faith, alleged that John Doe had used the internet as a tool for defamation, (2) the identifying information sought was directly and materially related to thir claim, and (3) the information could not be obtained from any other source

Nature of Case: Elected town council member and wife sued anonymous user of an internet “blog” who posted defamatory statements about plaintiffs on blog

Electronic Data Involved: Blog posting

Advantacare Health Partners, LP v. Access IV, 2005 WL 1398641 (N.D. Cal. June 14, 2005) (Unpublished)

Key Insight: Court denied individual defendant’s motion for reconsideration of default judgment entered against her and other defendants for continued destruction of evidence and continued possession of plaintiff’s proprietary files; although there was no evidence that individual defendant personally engaged in wrongful acts, she was not insulated by simply leaving compliance with court orders to other defendant; further, individual had numerous opportunities to disavow knowledge of misconduct or detail what efforts she personally took to comply with court orders but never did so

Nature of Case: Misapproriation of trade secrets and related torts

Electronic Data Involved: Proprietary information in electronic form

TIG Ins. Co. v. Premier Parks, Inc., 2005 WL 468300 (Del. Super. Ct. Mar. 1, 2005) (Unpublished)

Key Insight: Where insurer, in course of attempting to comply with discovery order, realized it had no electronic mechanism to retrieve case files based on whether a class was certified, but it could sort files by amount expended, court modified discovery order because it would have inflicted a substantial burden upon the insurer and the information produced would almost certainly be irrelevant

Nature of Case: Park operator alleged insurer failed to provide adequate counsel to defend a class action discrimination suit

Electronic Data Involved: Case file data

BG Real Estate Servs., Inc. v. Am. Equity Ins. Co., 2005 WL 1309048 (E.D. La. May 18, 2005)

Key Insight: Request for production of “computer hard drive” was overly broad and responding party need not produce entire hard drive; however, to the extent that hard drive contained non-privileged items that were responsive to other requests as to which responding party’s objections were not sustained, such items should be produced

Nature of Case: Insurance coverage and unauthorized settlement

Electronic Data Involved: Hard drive

Public Relations Soc’y of Am., Inc. v. Road Runner High Speed Online, 799 N.Y.S.2d 847 (N.Y. Sup. Ct. 2005)

Key Insight: Finding that individual had stated cognizable defamation claim against anonymous author of offending email, court denied email author?s application to vacate order requiring internet service provider to disclose email account information

Nature of Case: Defamation claim based on offending email message

Electronic Data Involved: Email author identity

Barton v. U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005)

Key Insight: Ninth circuit granted writ of mandamus reversing district court’s order compelling plaintiffs to produce their answers to law firm’s internet questionnaire; although questionnaire disclaimed any formation of an attorney-client relationship, it did not disclaim confidentiality, and, under California law, prospective clients’ communications with a view to obtaining legal services were covered by the attorney-client privilege

Nature of Case: Users of antidepressant sued manufacturer of drug

Electronic Data Involved: Law firm’s questionnaires regarding drug which were completed and submitted to the law firm on the internet

Banks v. United States, 2005 WL 974723 (W.D. Wash. Mar. 22, 2005)

Key Insight: Email between paralegal for U.S. Attorney’s Office and medical expert constituted work product, and inadvertent disclosure of email did not waive work product immunity under Ninth Circuit’s five-factor test, which balances: (1) the reasonableness of precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness

Nature of Case: Medical malpractice

Electronic Data Involved: Email

United States v. Mallinckrodt, Inc., 227 F.R.D. 295 (E.D. Mo. 2005)

Key Insight: Inadvertent disclosure of government’s privileged litigation report by copying report onto CD-ROMs produced to over 50 defense attorneys did not effect waiver of attorney-client privilege where (1) government took reasonable precautions to prevent inadvertent disclosure by segregating privileged documents in extensive privilege review of more than 61,000 pages, (2) only one privileged document was inadvertently produced, (3) government acted promptly by alerting all counsel of inadvertent production within one month after learning of the disclosure, and (4) the interest of justice favored relieving the government of its error

Nature of Case: Environmental litigation

Electronic Data Involved: CD-ROM

Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005)

Key Insight: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee

Nature of Case: Divorce proceeding

Electronic Data Involved: Data on hard drives

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