Archive: December 1, 2007

1
Albertson v. Albertson, 73 Va. Cir. 94, 2007 WL 6013036 (Va. Cir. Ct. 2007)
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In re Gupta, 263 S.W. 3d 184 (2007)
3
Digene Corp. v. Third Wave Techs. Inc., 2007 WL 5731934 (W.D. Wis. July 27, 2007)
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Paul v. USIS Commercial Servs., Inc.Slip Copy, 2007 WL 2727222 (D. Colo. Sept. 17, 2007)
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Reino de Espana v. Am. Bureau of Shipping, 2007 WL 1686327 (S.D.N.Y. June 6, 2007)
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Forrest v. All Cities Mortg. & Fin., Inc., 2007 WL 3026787 (E.D. Wis. Oct. 16, 2007)
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Pedroli v. Bartek, 2007 WL 1480967 (E.D. Tex. May 18, 2007)
8
Autotech Techs. Ltd. P?ship v. Automationdirect.com, Inc., 2007 WL 2746650 (N.D. Ill. Sept. 17, 2007)
9
Cyntegra, Inc. v. Idexx Labs., Inc., 2007 WL 5193736 (C.D. Cal. Sept. 21, 2007)
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Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)

Albertson v. Albertson, 73 Va. Cir. 94, 2007 WL 6013036 (Va. Cir. Ct. 2007)

Key Insight: Where issuance of a court order granting defendant the authority to access plaintiff?s password protected files already in defendant?s possession did not require plaintiff to perform a testimonial act, court held plaintiff?s assertion of Fifth amendment right did not bar court from granting defendant?s motion

Nature of Case: Divorce

Electronic Data Involved: Password protected computer files

In re Gupta, 263 S.W. 3d 184 (2007)

Key Insight: Appellate court denied petition for writ of mandamus where trial court appropriately ordered ?death penalty sanctions? (struck all pleadings) for defendant?s discovery violations including repeated failure to produce relevant information, repeated production of fraudulent materials, including diskettes and computers, and repeated false representations to the court; plaintiff filed three motions to compel and at least two motions for sanctions resulting in more than $60,000 in fines before imposition of ?death penalty sanctions? by trial court

Nature of Case: Fraudulent inducement, breach of contract, conversion

Electronic Data Involved: Computers, diskettes, ESI

Digene Corp. v. Third Wave Techs. Inc., 2007 WL 5731934 (W.D. Wis. July 27, 2007)

Key Insight: Where plaintiff failed to produce emails alleged to contain too little relevant information to justify production costs, court declined to compel production unless defendant indicated willingness to bear 100% of cost, including privilege review; court indicated that upon defendant?s discovery of ?highly relevant, non-cumulative information,? court may require plaintiff to pay fraction of cost

Nature of Case: Patent infringement and antitrust claims

Electronic Data Involved: Emails

Paul v. USIS Commercial Servs., Inc.Slip Copy, 2007 WL 2727222 (D. Colo. Sept. 17, 2007)

Key Insight: Court denied defendant?s post-trial motion for reimbursement of $292,000 incurred to preserve large volume of ESI as demanded by plaintiff at outset of litigation, finding that plaintiffs? demand, while arguably unreasonable, was not so abusive as to warrant sanctions; court noted that, where plaintiff demanded preservation of huge amounts of ESI and parties were not able to agree on narrowed scope of information to be preserved, defendant, ?like all parties, was left to make a reasonable judgment about what information must be preserved?

Nature of Case: Putative class action under Fair Credit Reporting Act

Electronic Data Involved: Information in all databases maintained by defendant, any and all e-mail, and other broad categories of information

Reino de Espana v. Am. Bureau of Shipping, 2007 WL 1686327 (S.D.N.Y. June 6, 2007)

Key Insight: Declining to grant sanction of dismissal since there was insufficient evidence of intentional or bad faith conduct, or adverse inference instruction since it was unclear how relevant the missing email was, court awarded monetary sanctions since Spain?s failure to timely implement adequate litigation hold and failure to conduct timely and diligent search for electronic discovery was negligent and resulted in loss of email; court further directed Spain to complete its forensic search for email records and produce such records on rolling basis

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

Forrest v. All Cities Mortg. & Fin., Inc., 2007 WL 3026787 (E.D. Wis. Oct. 16, 2007)

Key Insight: In case where defendant was shutting down its business effective November 1, 2007 and plaintiffs argued that shutdown raised possibility of evidence spoliation, court denied plaintiffs? request for order requiring defendant to preserve documents related to lawsuit since plaintiffs offered no evidence that defendant was actually destroying evidence or failing to retain relevant documentation and because defendant?s duty to prevent spoliation of relevant evidence was inherent in judicial process and business shutdown did not impact it

Nature of Case: Putative class action alleging violations of the Fair Credit Reporting Act

Electronic Data Involved: Unspecified evidence

Pedroli v. Bartek, 2007 WL 1480967 (E.D. Tex. May 18, 2007)

Key Insight: Court granted defendants’ expedited motion to suspend requirement for Rule 26(f) conference in light of pending motions to dismiss and provision in Private Securities Litigation Reform Act that provides for automatic stay of discovery and other proceedings in all federal securities fraud actions while motions to dismiss are pending

Nature of Case: Securities litigation

Electronic Data Involved: Rule 26(f) conference

Autotech Techs. Ltd. P?ship v. Automationdirect.com, Inc., 2007 WL 2746650 (N.D. Ill. Sept. 17, 2007)

Key Insight: Where defendant argued that extracting requested information regarding 56,000 to 60,000 customer invoices from computer system would cost as much as $80,000, and alternative method for extracting information proposed by plaintiff was unsuccessful, court held parties to their prior agreement and determined that reasonable allocation was for plaintiff to pay 62 percent and defendant to pay the remainder; court further ordered defendant to provide proof of actual cost and proof of actual payment and stated that, if defendant is able to extract information for less than $80,000 or if parties arrive at different cost-shifting formula, that will control

Nature of Case: Trademark infringement

Electronic Data Involved: Customer information stored in database

Cyntegra, Inc. v. Idexx Labs., Inc., 2007 WL 5193736 (C.D. Cal. Sept. 21, 2007)

Key Insight: Where plaintiff stored majority of its documents on third-party servers and failed to make payment to maintain the service, resulting in deletion of relevant documents, court declined to enter default judgment and monetary sanctions but instead would allow lesser sanction of adverse inference instruction, since (1) plaintiff had control, albeit indirectly, over destroyed information; (2) plaintiff was at least negligent in not taking any affirmative steps to preserve documents, and (3) evidence was relevant to defense

Nature of Case: Antitrust, tortious interference with contractual relations

Electronic Data Involved: Documents stored by plaintiff on third-party computer servers

Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)

Key Insight: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives

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