December 2011 – Page 20 – Electronic Discovery Law

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

Dec 01 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)

Dec 01 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)

Dec 01 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)

Dec 01 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)

Dec 01 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)

Dec 01 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

McNulty v. Reddy Ice Holdings, Inc., 2011 116892 (E.D. Mich. Jan. 13, 2011)

Dec 01 2011

Key Insight: Where defendant preserved 4 terabytes of electronically stored information and 744 boxes of paper documents to be reviewed for production, court cited Rule 26(b)(2)(B) for the proposition that burdensome discovery should be limited but found that plaintiff had good cause for requesting relevant information and ordered the parties to meet and confer to develop search terms or objective search criteria for identifying responsive ESI as well as to develop a search plan for the hard copy

Nature of Case: RICO

Electronic Data Involved: ESI, hard copy

Essenter v. Cumberland Farms, Inc., 2011 WL 124505 (N.D.N.Y. Jan. 14, 2011)

Dec 01 2011

Key Insight: Where a store employee attempted to copy the relevant surveillance footage but was unsuccessful and where the failure was not discovered until after the tape had been overwritten, the court found defendant?s loss of the relevant footage was negligent and imposed an adverse inference that the lost footage would have been unfavorable to the defendant

Nature of Case: Slip and fall

Electronic Data Involved: Video

United States v. Gravely, 2011 WL 112468 (E.D. Ky. Jan. 13, 2011)

Dec 01 2011

Key Insight: Bureau of Prison?s failure to preserve video footage of hallway outside cell in which the alleged murder of an inmate occurred did not violate the defendant?s constitutional rights where the defendant failed to establish that the footage was materially exculpatory and where the court found the failure to preserve was grossly negligent but not in bad faith

Nature of Case: Defendant charged with murdering another inmate

Electronic Data Involved: Video

Dubler v. Hangsterfer?s Labs., 2011 90244 (D.N.J. Jan. 11, 2011)

Dec 01 2011

Key Insight: Where defendant produced privileged emails and sought to preclude waiver arising therefrom, the court rejected defendant?s assertions that it did not intend to waive privilege and, noting the lack of evidence regarding reasonable steps to prevent disclosure and that defendant had not yet requested the return of the documents at issue, found that privilege had been waived

Nature of Case: Employement litigation

Electronic Data Involved: Privileged emails

Archive - December 2011