2011 – Page 10 – Electronic Discovery Law

Commonwealth Fin. Sys., Inc. v. Smith, No. 3435 EDA 2009, 2011 WL 489704 (Pa. Super. Ct. Feb. 14, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed trial court?s exclusion of electronic business records obtained by the plaintiff from the former holders of defendant?s debt, where the trial court properly concluded that the a representative of the plaintiff corporation was not ?the right person to establish the Citibank records? (because he was not familiar with how the records were created or maintained and had no personal knowledge of the entries on the at-issue spreadsheet, for example) and held that ?CPS failed to establish the trustworthiness and reliability of the records sufficiently to permit their admission into evidence? pursuant to Pennsylvania Rule of Evidence 803(6), among other things

Nature of Case: Action to collect credit card debt

Electronic Data Involved: Electronic records

Io Group, Inc. v. GLBT, Ltd., No. C-10-1282 MMC (DMR), 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

Dec 01 2011

Key Insight: Court granted plaintiffs? motion for sanctions and ordered adverse inference for defendants? spoliation where defendants failed to suspend the automatic deletion function on their email which deleted both incoming and outgoing emails after three to four days and where defendants admitted to deleting relevant audio visual content from their server, court also ordered payment of attorney?s fees and costs for defendants? failure to adequately respond to the court?s order for particular information related to their preservation and collection efforts; court rejected assertions that UK Data Protection Act does not permit the retention of personal information and required deletion of emails where defendant offered no evidence that the deleted data contained personal information protected by statute and also rejected the position that the court lacked authority to order production pursuant to the Data Protection Act

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634249 (E.D. Mich. Aug. 3, 2011); Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634245 (E.D. Mich. Oct. 5, 2011)

Dec 01 2011

Key Insight: For the City of Detroit?s bad faith spoliation of emails, the court declined to impose terminating sanctions but imposed a permissive adverse inference; for the City?s and its attorneys? ?bad faith disregard of their discovery obligations and the orders of this Court? which led to the destruction of evidence (including failing to disseminate a legal hold notice and Corporation Counsel?s ?utter delinquen[ce] in his duty to see that his clients complied with Judge Rosen?s orders?), the court ordered the city and Corporation Counsel to split plaintiffs? reasonable fees and costs; in its analysis related to an adverse inference, the court adopted the analysis of Forest Labs. Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. 2009), which held that an adverse inference may be appropriate in some cases involving the negligent destruction of evidence (as opposed to bad faith, which some courts have held is necessary)

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

Han v. Futurewei Techs., Inc., No. 11-CV-831-JM (JMA), 2011 WL 4344301 (S.D. Cal. Sept. 15, 2011)

Dec 01 2011

Key Insight: Court denied defendant?s motion for an order requiring plaintiff to allow defendant to copy the hard drives of her personal computing devices where the discovery sought was not relevant to any claims or defenses in the case, where defendant proffered no evidence of its suspicions that plaintiff stole proprietary information, and where defendant?s proposed protocol would result in ?needless accessing? of plaintiff?s personal information and would be unduly burdensome to the plaintiff; where plaintiff nonetheless indicated a willingness ?to partake in some kind of protocol to provide [defendant] with the information it seeks? and submitted her own proposed protocol, the court adopted it

Nature of Case: Employment litigation

Electronic Data Involved: Contents of Plaintiff’s personal computing devices

Orillaneda v. French Culinary Inst., No. 07 Civ. 3206(RJH)(HBP), 2011 WL 4375365 (S.D.N.Y. Sept. 19, 2011)

Dec 01 2011

Key Insight: Court found plaintiff?s request for information related to defendant?s internal search procedures and information systems did not seek relevant information and that plaintiff had not indentified facts that suggested defendant?s document production was deficient and granted defendant?s motion for a protective order stating, ?Discovery concerning these areas may be appropriate in certain circumstances, but it is not appropriate in this case unless and until plaintiff makes a specific showing that defendant?s production is deficient.?

Nature of Case: Employment discrimination

Electronic Data Involved: Information related to defendant?s internal search procedures and information systems

Estate of Wilson v. Addison, 258 P.3d 410 (Mont. 2011)

Dec 01 2011

Key Insight: Where medical facility destroyed medication records in accordance with its records-retention policy, despite a pending claim, but where the destruction was in not bad faith or an attempt to shield plaintiff from the truth and where there was no showing of prejudice, District Court did not abuse its discretion in denying plaintiff?s request for sanctions

Nature of Case: Medical Malpractice

Electronic Data Involved: Medication Records

Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., No. C09-0175, 2011 WL 4499259 (N.D. Iowa Sept. 27, 2011)

Dec 01 2011

Key Insight: Where plaintiffs alleged that examination of defendant?s laptop and other storage devices revealed evidence of spoliation and filed a motion for default judgment, the court reasoned that the evidence did not support a finding of intentional spoliation or bad faith, that the risk of prejudice to plaintiffs was small, that there was plenty of information for plaintiffs to utilize to pursue their claims, that public policy favored disposition on the merits, and that a less drastic sanction was available (namely a possible adverse inference instruction), and denied plaintiffs? motion; the recommendation of the Magistrate Judge was adopted by the District Court 2011 WL 5975127

Nature of Case: Claim for damages arising from property development

Electronic Data Involved: ESI

Tener v. Cremer, 931 N.Y.S.2d 552 (N.Y. App. Div. 2011)

Dec 01 2011

Key Insight: Addressing the obligation of a non-party to produce ESI that was deleted through ?normal business operations?, the court found that the Naussau Guidelines provided the best approach to determine the third party?s obligation to produce allegedly inaccessible data where the guidelines called for a cost/benefit analysis involving the difficulty of the production at issue; court found plaintiff had shown ?good cause? for needing the requested ESI but that there was insufficient evidence of the non-party?s alleged burden of production (including, for example, whether the at-issue ESI had actually been deleted, whether it could actually be retrieved, the cost of such retrieval, etc.) and thus remanded the case to the Supreme Court for ?a hearing on whether the information plaintiff seeks is ?inaccessible? and hence whether [the non-party] has the ability to comply with the subpoena; the appellate court reversed the Supreme Court?s ruling holding the non-party in contempt for failure to comply with a judicial subpoena

Nature of Case: Defamation

Electronic Data Involved: Identity of all persons who accessed the internet using a certain computer or internet portal on a certain day

Buonauro v. City of Berwyn, No. 08 C 6687, 2011 WL 3754820 (N.D. Ill. Aug. 25, 2011)

Dec 01 2011

Key Insight: Where defendant destroyed relevant audio recordings of City Council meetings despite anticipation of litigation but argued that the destruction was allowed under state law (which controlled the relevant retention period for such recordings), among other things, the court found that the tapes had been destroyed ?with a reckless disregard? of the duty to preserve which constituted bad faith and ordered an adverse inference establishing that if the tapes were available, they would have contained evidence favorable to the plaintiff

Nature of Case: Land Use/Zoning

Electronic Data Involved: Recordings of City Council meetings

Cannata v. Wyndham Wordwide Corp., No. 2:10-cv-00068-PMP-LRL, 2011 WL 3495987 (D. Nev. Aug. 10, 2011)

Dec 01 2011

Key Insight: Court denied defendants? motion for a protective order precluding plaintiffs? inquiry (in deposition) into defendants? preservation efforts where, although a litigation hold letter is generally privileged, ?the basic details surrounding the litigation hold are not? and where the court found that the answers to certain of plaintiffs? questions, including inquiries into the ?overwrite function issue? (apparently related to a failure to stop automatic deletion), would ?allow the parties to craft a narrow, manageable ESI plan?

Nature of Case: Employment litigation

Electronic Data Involved: Information related to legal hold efforts

Archive - 2011