Archive - December 2008

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Thomas v. IEM, Inc., 2008 WL 695230 (M.D. La. Mar. 12, 2008)
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Commerce Benefits Group, Inc. v. McKesson Corp., 2008 WL 657838 (N.D. Ohio Mar. 6, 2008)
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Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)
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Connor v. Sun Trust Bank, 2008 WL 623027 (N.D. Ga. Mar. 5, 2008)
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Am. Express Co. v. Goetz, 515 F.3d 156 (2nd Cir. 2008)
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Executive Air Taxi Corp. v. City of Bismarck, 2008 WL 564725 (8th Cir. Mar. 4, 2008)
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United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)
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APC Filtration, Inc. v. Becker, 2008 WL 548765 (N.D. Ill. Feb. 25, 2008)
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Peacock v. Merrill, 2008 WL 509636 (S.D. Ala. Feb. 22, 2008)
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Tse v. UBS Fin. Servs., Inc., 2008 WL 463719 (S.D.N.Y. Feb. 19, 2008)

Thomas v. IEM, Inc., 2008 WL 695230 (M.D. La. Mar. 12, 2008)

Key Insight: Where plaintiff wrongly served Rule 45 subpoena on defendant in attempt to avoid discovery deadline, and subpoena was not limited in terms of time or subject matter but simply requested all emails contained in designated individuals’ in-boxes as of a particular date, and defendant set forth detailed account of burden and specific estimate of staff hours and cost that would be expended to comply with subpoena, court denied plaintiff’s motion to compel defendant’s compliance with subpoena

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Entire electronic mailboxes of key players

Commerce Benefits Group, Inc. v. McKesson Corp., 2008 WL 657838 (N.D. Ohio Mar. 6, 2008)

Key Insight: Where plaintiff did not demonstrate that focus of the defendants’ search was not reasonably directed toward finding responsive documents, and failed to establish that relevance and necessity of any further discovery into email backup tapes outweighed burden and expense that would ensue, not to mention further delay which would certainly follow, court denied motion to compel

Nature of Case: Breach of contract

Electronic Data Involved: ESI stored on backup tapes

Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)

Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence

Nature of Case: Prisoner asserted ? 1983 action against various prison defendants

Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff

Connor v. Sun Trust Bank, 2008 WL 623027 (N.D. Ga. Mar. 5, 2008)

Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead

Nature of Case: FMLA claims

Electronic Data Involved: Email

Executive Air Taxi Corp. v. City of Bismarck, 2008 WL 564725 (8th Cir. Mar. 4, 2008)

Key Insight: Eighth Circuit upheld district court’s order denying plaintiff’s request to have a third-party expert conduct forensic investigation of a City-owned computer to search for relevant emails that might not have been produced in discovery; district court’s findings that City had produced all relevant emails in hard copy and that forensic discovery could expose confidential or privileged materials were not clearly erroneous and in light of that factual premise there was no abuse of discretion

Nature of Case: Equal protection and substantive due process claims

Electronic Data Involved: Laptop computer of defendant’s employee

APC Filtration, Inc. v. Becker, 2008 WL 548765 (N.D. Ill. Feb. 25, 2008)

Key Insight: Court rejected defendants’ objections to magistrate judge’s December 21, 2008 order imposing sanctions of $99,462, upheld the December 21, 2008 order in its entirety, and ordered defendants to comply with the order by March 3, 2008

Nature of Case: Misappropriation of trade secrets and breach of employment contract

Electronic Data Involved: Computer

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

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