Archive: December 1, 2011

1
Innis Arden Golf Club, Inc. v. O?Brien & Gere Eng?rs. Inc., No. CV106006581, 2011 WL 6117908 (Conn. Super. Ct. Nov. 18, 2011)
2
Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)
3
Mgmt. Compensation Group Lee, Inc. v. Oklahoma State Univ., No. CIV-11-967-D, 2011 WL 5326262 (W.D. Okla. Nov. 3, 2011)
4
Suzlon Energy Ltd. v. Microsoft Corp.,671 F.3d 726(9th Cir. 2011)
5
Benefitvision, Inc. v. Gentiva Health Servs., Inc., No. CV 09-473(DRH)(AKT), 2011 WL 3796324 (E.D.N.Y. May 23, 2011)
6
In the Matter of an Application of the United State for an Order Authorizing the Release of Historical Cell-Site Information, No. `0-MC-897 (NGG), 2011 WL 3678934 (E.D.N.Y. Aug. 22, 2011)
7
Pensacola Firefighters? Relief Pension Fund Board of Trustees v. Merril Lynch Pierce Fenner & Smith, Inc., No. 3:09cv53/MCR/MD, 2011 WL 3512180 (N.D. Fla. July 7, 2011)
8
Uhlig LLC v. Shirley, No. 6:08-cv-01208-JMC, 2011 WL 2728445 (D.S.C. July 13, 2011)
9
In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)
10
Specht v. Google, Inc., No. 09 C 2572, 2011 WL 2565666 (N.D. Ill. June 27, 2011)

Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email

Mgmt. Compensation Group Lee, Inc. v. Oklahoma State Univ., No. CIV-11-967-D, 2011 WL 5326262 (W.D. Okla. Nov. 3, 2011)

Key Insight: Where non-party OSU represented that responding to a subpoena seeking 6571 documents would require an expenditure of $1,761.24 and 55 hours of in-house counsel?s time, court found the burden was not so undue as to require protection from compliance and, in so finding, noted OSU?s financial interest in the outcome of the litigation, OSU?s close ties to a party in the case, and the amount in controversy of the underlying litigation (many millions of dollars)

Electronic Data Involved: ESI

Suzlon Energy Ltd. v. Microsoft Corp.,671 F.3d 726(9th Cir. 2011)

Key Insight: In this case, the Ninth Circuit affirmed the decision of the District Court that the Electronic Communications Privacy Act (ECPA) applies to foreign citizens and thus precluded Microsoft Corporation from producing a foreign citizen?s emails, which were stored on its server.

Electronic Data Involved: Emails stored on domestic server

Benefitvision, Inc. v. Gentiva Health Servs., Inc., No. CV 09-473(DRH)(AKT), 2011 WL 3796324 (E.D.N.Y. May 23, 2011)

Key Insight: Court ordered that non-privileged portions of email chains be produced with privileged portions redacted and properly logged; court addressed formatting and substantive issues with defendants? privilege log and ordered defendants to edit their log to remove the unnecessary data that was exported into the log from the documents database (e.g., dashes, arrows, etc.) to facilitate ease of use and to amend their descriptions to provide information sufficient to analyze the viability of the privilege claim

Electronic Data Involved: Emails

In the Matter of an Application of the United State for an Order Authorizing the Release of Historical Cell-Site Information, No. `0-MC-897 (NGG), 2011 WL 3678934 (E.D.N.Y. Aug. 22, 2011)

Key Insight: Court found reasonable expectation of privacy existed as to cumulative cell-site-location records such that they were protected by the Fourth Amendment and denied the Government?s motion pursuant to 18 U.S.C. ? 2703(c)(1) and (d) which sought two orders directing Verizon Wireless to disclose the cell-site-location records pursuant to the Stored Communications Act

Electronic Data Involved: Cell-site-location records

Pensacola Firefighters? Relief Pension Fund Board of Trustees v. Merril Lynch Pierce Fenner & Smith, Inc., No. 3:09cv53/MCR/MD, 2011 WL 3512180 (N.D. Fla. July 7, 2011)

Key Insight: Finding good cause, the court granted intervenors? motion for a protective order prohibiting plaintiff?s discovery of intervenors? privileged emails sent over defendant?s email servers (defendant was found to have waived its privilege as to such communications) where the intervenors were employees of defendant during the pendency of government investigations; had a joint defense agreement with defendant allowing communication for purposes of furthering their defense against the investigations; and held an objectively reasonable belief that their emails would remain confidential, in spite of defendant?s internal email policies warning that they were not, in light of defendant?s general counsel?s endorsement of and participation in such joint defense discussions

Electronic Data Involved: Intervenors’ privileged emails sent over defendant’s servers

Uhlig LLC v. Shirley, No. 6:08-cv-01208-JMC, 2011 WL 2728445 (D.S.C. July 13, 2011)

Key Insight: Court granted motion to modify imaging protocol and, after indicating its belief that ?the use of hash values eliminates the need for search limitations,? ordered a protocol modification that included an order for the expert to search for hash values to identify documents present on more than one specified computer/device

Electronic Data Involved: Contents of personal computer, storage devices

In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)

Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?

Electronic Data Involved: Contents of personal computer, storage devices

Specht v. Google, Inc., No. 09 C 2572, 2011 WL 2565666 (N.D. Ill. June 27, 2011)

Key Insight: Acknowledging that expenses related to imaging and creating electronic versions of documents are taxable when the parties have agreed to produce documents electronically, the court denied defendant?s request for recovery of such funds absent evidence that the parties agreed to electronic production; court denied recovery of expenditure for converting plaintiff?s QuickBooks database into a usable format because such costs are not recoverable

Electronic Data Involved: ESI, QuickBooks database

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