December 2012 – Page 19 – Electronic Discovery Law

Kilopass Tech., Inc. v. Sidense Corp., No. C-10-02066 SI, 2012 WL 1534065 (N.D. Cal. May 2, 2012)

Dec 01 2012

Key Insight: Conducting waiver analysis pursuant to Fed. R. Evid. 502(b), court found that plaintiff?s efforts to preclude disclosure were not reasonable where plaintiff claimed the inadvertent disclosure was the result of mistakes on the party of the party, its counsel, and its vendor, including the client?s failure to provide names of all law firm with which it had worked, the vendor?s failure to run a privilege search on all production batches, and counsel?s failure to adequately review the documents identified for production before providing them to opposing counsel; court also relied on the large number of documents inadvertently produced?more than one in 50?reasoning, ?[t]he high proportion of privilege documents evidences a failure on Kilopass?s part to properly screen the documents.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

MPCA King of Spades v. T.E.C. 2 Broad., Inc., No. 1:11cv00080, 2012 WL 1203372 (W.D. Va. Apr. 10, 2012)

Dec 01 2012

Key Insight: In litigation including claims that defendants had publically broadcast plaintiffs? copyrighted music without permission, the court noted that the question of ?what songs have been played and when? was at the ?heart? of the litigation and that the inability to retrieve that information in an ?easily accessible format? was the result of defendants? failure to preserve such that mirror imaging was warranted to determine if deleted programming logs could be restored and ordered that defendant bear the risk of any possible interruption to its ability to broadcast while the copying occurred (i.e., plaintiff would not be liable for any interruption in programming)

Nature of Case: Copyright infringement

Electronic Data Involved: Programming logs

Brooks v. Ohio State Chiropractic Board, No. 2:12-cv-225, 2012 WL 1429386 (S.D. Ohio Apr. 25, 2012)

Dec 01 2012

Key Insight: Where plaintiff failed to establish the likelihood of his success on the merits or that he would suffer immediate irreparable harm absent injunctive relief, the court denied plaintiff?s motion for a temporary restraining order and/or preliminary injunction; as to the likelihood of irreparable harm, the court?s analysis focused in part on other mechanisms to ensure preservation, including a specific demand for preservation which the plaintiff had already utilized and the threat of sanctions for failure to preserve

Nature of Case: Claims arising from plaintiff’s placement on administrative leave and defendant’s seizure of his property

Electronic Data Involved: ESI

Geller v. Von Hagens, No. C11-80269, 2012 WL 1413461 (N.D. Cal. Apr. 23, 2012)

Dec 01 2012

Key Insight: Court granted third party?s motion to quash a subpoena where the court determined the subpoena was unduly burdensome, particularly in light of the third party?s estimate that the cost of identifying the requested information could exceed $40,000?a significant sum for a non-profit museum; ?as important? as the analysis of undue burden was the fact that plaintiff sought the requested information only from third party sources rather than from defendants which the court found ?only exacerbate[ed] the burden?

Nature of Case: Defamation and tortious interference

Electronic Data Involved: ESI

Grabenstein v. Arrow Elecs., Inc., No. 10-cv-02348-MSK-KLM, 2012 WL 1388595 (D. Colo. Apr. 23, 2012)

Dec 01 2012

Key Insight: Court declined to impose spoliation sanctions where plaintiff was unable to support her allegation that additional relevant emails existed that were not produced and where, despite a violation of the duty to preserve ?personnel or employment records? pursuant to federal law, the only copies of relevant emails that were proven to exist had been provided to plaintiff and plaintiff provided no evidence that the emails (that were not preserved in violation of federal law) were destroyed in bad faith or other than in the normal course of business

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Atkinson v. House of Raeford Farms, Inc., No. 6:09-cv-01901-JMC (D.S.C. Apr. 27, 2012)

Dec 01 2012

Key Insight: Where relevant documents were discovered upon forensic examination and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs motion for spoliation sanctions

Nature of Case: Emploment Litigation

Electronic Data Involved: ESI

Earl v. House of Raeford Farms, Inc., No. 6:09-cv-03137-JMC, 2012 WL 1458185 (D.S.C. Apr. 27, 2012)

Dec 01 2012

Key Insight: Where relevant documents were discovered upon forensic examination of a relevant hard drive and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute Defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs’ motion for spoliation sanctions

Nature of Case: Employment litigation

Electronic Data Involved: ESI

Cordance Corp. v. Amazon.com, Inc., 855 F. Supp. 2d 244 (D. Del. Apr. 2012)

Dec 01 2012

Key Insight: Plaintiff objected to Defendant?s bill of costs, including significant costs related to electronic discovery. Citing the recent decision of the Third Circuit in Race Tires America., Inc. v. Hoosier Racing Tire, Corp., the court reduced Defendant?s request for e-discovery costs from $447,694.63 to $2,721.53.

Nature of Case: Patent infringement

Electronic Data Involved: Taxable costs related to ediscovery

Hudson v. AIH Receivable Mgmt. Servs., No. 10-2287-JAR-KGG, 2012 WL 1194329 (D. Kan. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where employee ?at the heart of Plaintiff?s claims of discrimination and harassment? ?misunderstood the requirements of the litigation hold? and continued his practice of deleting all emails every day but claimed that he never received or erased any emails related to plaintiff?s lawsuit and that all of his sent emails were preserved (as were the emails sent to him from his managers because of their compliance with the litigation hold), court found the deletions were negligent and ordered an instruction that the emails were destroyed and would have been favorable to plaintiff?s case

Nature of Case: Employment litigation

Electronic Data Involved: Email

People v. Torres, No. E052071, 2012 WL 1205808 (Cal. Ct. App. Apr. 11, 2012)

Dec 01 2012

Key Insight: Trial court did not abuse its discretion in permitting prosecution to show a YouTube video where, although officer testified ?he did not know when the video was made or who produced it? he testified that the video was an accurate depiction of what it looked like on YouTube such that the trial court ?could conclude that the video would assist jurors in determining the facts of the case and motivation for the crimes? and where the court determined that the issues of when and who produced the video spoke to issues of reliability and weight and that the images on the video (picture of the alleged victim with an ?x? over his face, for example) coupled with evidence linking defendant to the crime of attempted murder ?sufficiently link[ed] the video with the defendant?

Nature of Case: Attempted murder

Electronic Data Involved: YouTube video

Archive - December 2012