Archive: December 1, 2008

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Tse v. UBS Fin. Servs., Inc., 2008 WL 463719 (S.D.N.Y. Feb. 19, 2008)
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Ingoglia v. Barnes & Noble Coll. Booksellers, Inc., 852 N.Y.S.2d 337 (N.Y. App. Div. 2008)
3
Church v. Wachovia Sec., Inc., 2008 WL 281091 (W.D.N.C. Jan. 30, 2008)
4
Diabetes Ctrs. of Am., Inc. v. Healthpia Am., Inc., 2008 WL 336382 (S.D. Tex. Feb. 5, 2008)
5
Bro-Tech Corp. v. Thermax, Inc., 2008 WL 356928 (E.D. Pa. Feb. 7, 2008), modified, 2008 WL 724627 (E.D. Pa. Mar. 17, 2008)
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Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Americas LLC, 516 F.3d 623 (7th Cir. 2008)
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Karim v. Natural Stone Indus., Inc., 2008 WL 429627 (N.Y. Sup. Ct. Jan. 18, 2008)
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Adams v. United States, 2008 WL 346017 (D. Idaho Feb. 6, 2008)
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Ferron v. Echostar Satellite, LLC, 2008 WL 341310 (S.D. Ohio Feb. 6, 2008)
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Atmel Corp. v. Authentec Inc., 2008 WL 276393 (N.D. Cal. Jan. 31, 2008)

Tse v. UBS Fin. Servs., Inc., 2008 WL 463719 (S.D.N.Y. Feb. 19, 2008)

Key Insight: Plaintiff’s grossly negligent failure to produce laptop computer earlier in litigation reflected blatant disregard of her discovery obligations; court granted post-trial motion for sanctions and awarded defendant its fees and costs for: drafting pre-trial spoliation motion concerning plaintiff?s laptop; addressing plaintiff’s last-minute discovery of laptop; submissions to court regarding data retrieval issues and how defendant?s pretrial spoliation motion was affected; and drafting a new motion for sanctions based on plaintiff’s misconduct with respect to laptop and prejudice to defendant

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop

Ingoglia v. Barnes & Noble Coll. Booksellers, Inc., 852 N.Y.S.2d 337 (N.Y. App. Div. 2008)

Key Insight: Appellate court reversed trial court?s denial of motion to dismiss complaint as sanction for spoliation, and granted motion to dismiss, where defendant’s expert found that numerous files, images, and folders, as well as some history of the plaintiff’s internet usage had been deleted between date defendant demanded inspection of plaintiff’s computer and date of inspection, and evidence showed that defendant suffered severe prejudice

Nature of Case: Defamation

Electronic Data Involved: Files on plaintiff’s home computer

Church v. Wachovia Sec., Inc., 2008 WL 281091 (W.D.N.C. Jan. 30, 2008)

Key Insight: Court ordered parties to file joint status report describing results of targeted search of defendant’s data backup system with respect to particular witness and stating their respective positions on issue of whether such results warranted further search of data backup system for emails authored by or addressed to other individuals

Nature of Case: Breach of contract, violation of North Carolina Wage and Hour Act

Electronic Data Involved: All emails relating to plaintiff or his compensation generated in past ten years by plaintiff and other Wachovia employees

Diabetes Ctrs. of Am., Inc. v. Healthpia Am., Inc., 2008 WL 336382 (S.D. Tex. Feb. 5, 2008)

Key Insight: Where court found that defendants may not have taken adequate steps to preserve emails through a backup process but followed the company’s standard procedures, and if anything, there was negligence derived from lax electronic document maintenance procedures, and that plaintiff?s counsel, at most, may have been lax in that inadequate direction and oversight was given to associate to guide her search for relevant and responsive emails, court concluded that, while all parties were remiss in fulfilling their discovery obligations, there was no evidence of ?bad faith? on the part of either party to warrant an instruction on spoliation and denied parties’ competing sanctions motions

Nature of Case: Breach of contract

Electronic Data Involved: Emails, laptops

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 356928 (E.D. Pa. Feb. 7, 2008), modified, 2008 WL 724627 (E.D. Pa. Mar. 17, 2008)

Key Insight: Where examination of defendants? hard drives and servers was only way to determine whether defendants had violated court order requiring them to locate any files taken from plaintiffs, return them to plaintiffs, and then purge plaintiffs? files from defendants? electronic storage devices, magistrate judge ordered defendants to produce forensic copies of hard drives and servers to plaintiffs? counsel on a ?Confidential-Designated Counsel Only? basis

Nature of Case: Misappropriation of trade secrets, unfair competition

Electronic Data Involved: Defendants’ hard drives and servers

Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Americas LLC, 516 F.3d 623 (7th Cir. 2008)

Key Insight: Seventh Circuit upheld trial court’s dismissal of plaintiffs’ claims as sanction for flagrant discovery misconduct

Nature of Case: Dealerships sued for breach of contract and other claims

Electronic Data Involved: Financial data

Karim v. Natural Stone Indus., Inc., 2008 WL 429627 (N.Y. Sup. Ct. Jan. 18, 2008)

Key Insight: Where computer hard drive was not relevant and material to plaintiff’s ability to return to employment, evidence regarding plaintiff?s employability was ascertainable by other means, and it would be impossible to discern plaintiff?s computer usage beyond the use testified to at deposition given that several members of plaintiff’s household also used the computer, court denied as improperly invasive third-party defendant?s request for a ?clone? of plaintiff’s home computer hard drive

Nature of Case: Injured construction worker sued for violations of New York Labor Law and for common law negligence

Electronic Data Involved: Plaintiff’s home computer

Adams v. United States, 2008 WL 346017 (D. Idaho Feb. 6, 2008)

Key Insight: Stating that it was convinced that DuPont was proceeding as fast as it could, given privilege concerns and the sheer bulk of the documents at issue, court denied plaintiffs’ request that DuPont provide a more expedited production of electronic documents

Nature of Case: Tort claims for crop damage allegedly resulting from government’s spraying of herbicide

Electronic Data Involved: Electronic documents

Ferron v. Echostar Satellite, LLC, 2008 WL 341310 (S.D. Ohio Feb. 6, 2008)

Key Insight: Concluding that ESI sought from plaintiff’s computers directly related to issues in dispute and that the computers likely contained certain relevant evidence that was not contained on CD-ROMs or email attachments previously produced by plaintiff, court granted defendants? motion for an extension of the date by which to designate experts to a date after their inspection of plaintiff’s computers; court extended various discovery deadlines and ordered parties to confer to formulate a procedure reasonably calculated to afford the moving defendants the discovery to which they were entitled, while at the same time protecting plaintiff?s privileged information

Nature of Case: Plaintiff alleged claims under Ohio consumer protection laws based upon emails received from defendants

Electronic Data Involved: Computer hard drives

Atmel Corp. v. Authentec Inc., 2008 WL 276393 (N.D. Cal. Jan. 31, 2008)

Key Insight: Where plaintiff?s Rule 30(b)(6) designee testified that he did not know whether files of CEO or nine key players had been searched for responsive documents, defendant demonstrated a ?serious question? as to the adequacy of plaintiff?s search and court ordered plaintiff to search email and computers of plaintiff and nine key players and submit declaration(s) from most knowledgeable person(s) detailing the searches performed

Nature of Case: Patent litigation

Electronic Data Involved: Email

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