Archive: December 1, 2011

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Cook v. Olathe Health Sys., Inc., 2011 WL 346089 (D. Kan. Feb. 2, 2011)
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Viramontes v. U.S. Bancorp, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011)
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Medeva Pharma Suisse A.G. v. Roxane Labs., Inc., 2011 WL 310697 (D.N.J. Jan. 28, 2011)
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Harmon v. Lighthouse Capital Funding, Inc. (In re Harmon), 2011 WL 302859 (Bankr. S.D. Tex. Jan. 26, 2011)
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Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)
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Apelbaum v. Networked Insights, Inc., 2011 WL 286125 (W.D. Wis. Jan. 27, 2011)
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Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)
8
United States v. Halliburton, Co., 272 F.R.D. 235 (D.D.C. 2011)
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Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)
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Liberman v. Fedex Ground Package Syst., Inc., 2011 WL 145474 (E.D.N.Y. Jan. 18, 2011)

Cook v. Olathe Health Sys., Inc., 2011 WL 346089 (D. Kan. Feb. 2, 2011)

Key Insight: Court denied motion for spoliation sanctions where plaintiff was unable to establish that the relevant hard drives were destroyed after the duty to preserve arose and where plaintiff was unable to establish that the in-car video at issue ever existed or was destroyed after the duty to preserve arose in light of defendants? testimony that because of a ?recorder malfunctioned? no video existed

Nature of Case: Civil claims arising from alleged mistreatment upon arrest

Electronic Data Involved: Four hard drives, officer’s in-car video

Viramontes v. U.S. Bancorp, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011)

Key Insight: Court rejected plaintiff?s assertion that her January 22, 2009 letter to human resources put defendants on notice of its duty to preserve where the letter complained about her manager but did not threaten litigation and instead suggested ?a non-litigious resolution,? where plaintiff testified that she had no intention of suing at the time she sent the letter, where plaintiff waited over ten months after sending the letter to bring the instant litigation, and where the manager?s testimony that he thought the letter could give rise to legal ramifications was not sufficient to trigger the corporation?s duty to preserve

Nature of Case: Failure to accomodate, retaliation in violation of ADA

Electronic Data Involved: Emails

Medeva Pharma Suisse A.G. v. Roxane Labs., Inc., 2011 WL 310697 (D.N.J. Jan. 28, 2011)

Key Insight: Despite acknowledging defendant?s failure to implement a litigation hold until at least 5 years after it first anticipated litigation, the court denied plaintiff?s motion for sanctions where the quantity and quality of the documents produced by defendant established that relevant information was ?diligently preserved? pursuant to defendant?s document retention policy and where plaintiff failed to establish that it had been prejudiced or that its ability to effectively prepare for trial had been impeded

Nature of Case: Hatch-Waxman patent infringement

Electronic Data Involved: ESI, emails

Harmon v. Lighthouse Capital Funding, Inc. (In re Harmon), 2011 WL 302859 (Bankr. S.D. Tex. Jan. 26, 2011)

Key Insight: Providing a detailed explanation of defendant?s and counsel?s discovery abuses, including failing to search for internal emails, ignoring plaintiff?s subpoena, and counsel?s offering of ?evasive and unfounded testimony in an effort to rationalize his inexcusable non-production? of certain relevant (and repeatedly requested) documents, among other things, the court denied defendant?s motion for reconsideration and upheld as a sanction the establishment of a particular fact in plaintiff?s favor, namely that Lighthouse did not establish an escrow account in accord with its obligations under its agreement with plaintiffs

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Emails, bank statements

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)

Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance footage

Apelbaum v. Networked Insights, Inc., 2011 WL 286125 (W.D. Wis. Jan. 27, 2011)

Key Insight: Court declined to impose sanctions for plaintiff?s failure to disable software set to automatically erase and write-over internet-related files whenever the browser closed where plaintiff asserted that he installed such software as a regular practice on all of his computers and where because of the automatic nature of the software, evidence was lost well before plaintiff filed his suit or defendant filed its countersuit; defendant would be allowed to present additional evidence of spoliation at trial and the court indicated its willingness to reconsider sanctions upon a showing that more than just internet-related files were deleted

Nature of Case: Breach of contract related to compensation

Electronic Data Involved: Laptop

Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)

Key Insight: Court found no waiver of plaintiff?s claims of privilege resulting from the production of one privileged email where, pursuant to FRE 502(a) the waiver was not intentional as established by the sworn statement of plaintiff?s counsel that he was not aware that the plaintiff?s sister, the other party to the relevant email, was an attorney

Nature of Case: Hostile work environment, retaliation, intentional infliction of emotional distress

Electronic Data Involved: Privileged email

United States v. Halliburton, Co., 272 F.R.D. 235 (D.D.C. 2011)

Key Insight: Court declined to compel defendants to conduct additional searching where defendants established the significant efforts already undertaken to locate and produce responsive materials and where plaintiff made ?no showing whatsoever . . . that those emails not produced will make the existence of some crucial facts more likely than not?, the court concluded that ?the search relator demands cannot possibly be justified when one balances its cost against its utility.?; court went on to establish that the inability to find certain information, despite a duty to preserve, did not negate the ability of a party to rely on Rule 26(b)(2)(C) to argue against additional searching

Nature of Case: Fraud

Electronic Data Involved: Additional searching for ESI

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)

Key Insight: Where plaintiffs challenged the sufficiency of defendants? search, including whether defendants had used the agreed-upon search terms, and the format of defendant?s production, and where plaintiff specifically pointed to an email that should have been produced but was not, the court noted plaintiffs? concession that defendants? search methodology did not result in plaintiff receiving fewer documents and that they had been able to use the information produced, despite their arguments regarding format, but ?nevertheless concluded? that defendants should provide additional information and ordered the submission of an affidavit detailing defendants? search efforts; the court concluded that the dispute in this case was ?caused primarily by the parties? mutual failure to communicate and work together in good faith to resolve the areas of dispute? and counseled that in future the parties should more clearly specify the way in which discovery will be conducted and, if they cannot agree, should seek judicial assistance

Nature of Case: Suit for damages arising from failure to provide proper ship management

Electronic Data Involved: ESI

Liberman v. Fedex Ground Package Syst., Inc., 2011 WL 145474 (E.D.N.Y. Jan. 18, 2011)

Key Insight: Where defendant negligently failed to preserve information that would have revealed whether a FedEx agent delivered packages to the address of the relevant accident on the day in question and where the presence of such a delivery person was disputed by FedEx, the court declined to grant default judgment but ordered an adverse inference establishing that a FedEx agent had delivered a package to the relevant address on the date of the accident

Nature of Case: Injury resulting from being hit by delivery handtruck loaded with boxes

Electronic Data Involved: ESI

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