eDiscovery Import – Page 109 – Electronic Discovery Law

Mikhlyn v. Bove, No. 08-CV-3367 (ARR) (RER), 2011 WL 4529619 (E.D.N.Y. Aug. 3, 2011); Mikylyn v. Bove, No. 08-CV-3367 (ARR) (RER), 2011 WL 4529613 (E.D.N.Y. Sept. 28, 2011)

Dec 01 2011

Key Insight: Upon reconsideration of prior order awarding sanctions against defendants, court found that additional evidence indicated culpability on the part of defense counsel that justified joint and several liability for sanctions; defendants? discovery violations included willful failure to produce certain documents and the destruction of other ESI; counsels? discovery failures included defense counsels? failure to adequately communicate with opposing counsel resulting in court intervention and failure to comply with court orders; as sanction, court ordered defendants and counsel to pay specifically delineated portions of plaintiffs? attorneys? fees and costs

Nature of Case: trademark infringement, unfair competition, and related claims

Electronic Data Involved: ESI

State v. Holiday, No. 1 CA-CR 10-0698, 2011 WL 3819844 (Ariz. App. Ct. Aug. 30, 2011)

Dec 01 2011

Key Insight: Court denied motion to reverse conviction based on state?s failure to preserve evidence despite defendant?s alleged express written request to do so where, because the contents of the audio and visual tapes at issue was unknown, evidence of bad faith was required and where no such evidence was presented; the court indicated: ?The record indicates that the officers were acting in good faith in accordance with their normal practices when the tapes were destroyed.?

Nature of Case: Criminal

Electronic Data Involved: Audio and visual tapes related to arrest, etc.

Denim N. Amer. Holdings, LLC v. Swift Textiles LLC, 816 F. Supp. 2d (M.D. Ga. 2011)

Dec 01 2011

Key Insight: Despite noting that it was ?undisputed? that plaintiffs? witnesses did not modify their practice of ?deleting most emails within a short time of receiving them? even after they reasonably anticipated litigation, the court declined to impose an adverse inference where the record supported a finding that the witnesses ?destroyed the emails in the ordinary course of business unmotivated by any bad faith.?

Nature of Case: Fraudulent inducement, breach of fiduciary duty

Electronic Data Involved: Emails

City of Colton v. Amer. Promotional Events, Inc., 277 F.R.D. 578 (C.D. Cal. Oct. 13, 2011)

Dec 01 2011

Key Insight: Affirming the order of the magistrate judge, the Court found that Rule 34 production requirements applied equally to hard copy and ESI, that the Case Management Order did not exempt the parties from the requirements of Rule 34, and that where defendants did not produce ESI as maintained in the usual course of business, they would be required to label their productions to correspond to the categories in the request, or, as offered by plaintiff, could re-produce ESI in native format in lieu of labeling

Nature of Case: CERCLA, RCRA – seeking cleanup costs from owner of property formerly used as ammunition storage

Electronic Data Involved: ESI

E.E.O.C. v. Dillon Companies, Inc., —F. Supp. 2d—, 2011 WL 5834648 (D. Colo. Nov. 21, 2011)

Dec 01 2011

Key Insight: For defendant?s failure to preserve highly relevant surveillance footage in bad faith (as evidenced by the loss of three copies of the tape and the deliberate recording over of the master tape) which resulted in prejudice to the plaintiff, the court ordered an adverse inference instruction that the information would have been unfavorable to defendant and precluded defendant from offering the testimony of witnesses who viewed the footage prior to its loss as to what the footage depicted

Nature of Case: Employment discrimination/violation of Americans with Disabilities Act

Electronic Data Involved: Original and three copies of relevant surveillance footage

ChampionsWorld LLC v. U.S. Soccer Fed?n, 276 F.R.D. 577 (N.D. Ill. Aug. 17, 2011)

Dec 01 2011

Key Insight: Addressing defendant?s motion for sanctions, the court found that defendant?s CEO and outside counsel ?should have done more to ensure that relevant evidence was preserved? and that defendant had been prejudiced where certain documents had been lost due to plaintiff?s reliance on a verbal ?100 percent document retention policy? (i.e. the company deleted nothing) and because of plaintiff?s failure to inform its accountants of the need to preserve, but declined to impose drastic sanctions and ordered that the jury be informed of plaintiff?s failure to preserve certain relevant information

Nature of Case: Allegations of anticompetitive acts

Electronic Data Involved: ESI

LG Elecs. U.S.A., Inc., v. Whirlpool Corp., No. 08 C 0242, 2011 WL 5008425 (N.D. Ill. Oct. 20, 2011)

Dec 01 2011

Key Insight: Regarding recovery of costs for electronic discovery, court acknowledged that it was ?undisputable that electronic discovery costs are available under Section 1920(4)? but that there was ?scant legal authority? providing guidance on the matter and noted that it was difficult for the court to determine the reasonableness of the costs at issue and thus awarded half of the requested costs equaling $35,292.56

Nature of Case: Lanham Act: False Advertising

Electronic Data Involved: Costs

LW. Matteson, Inc. v. Sevenson Envtl. Servs., Inc., No. 10-CV-168S, 2012 WL 5597653 (W.D. N.Y. Nov. 17, 2011)

Dec 01 2011

Key Insight: Although the allegedly spoliated information was likely relevant, court denied motion for spoliation sanctions where plaintiff?s pre-litigation letter expressing dissatisfaction with defendant?s work did not put defendants on notice that the at-issue data was relevant and should be preserved and where there was no evidence that defendant intended to destroy the data but rather that the information was lost because the computer on which it was stored did not save the information and instead deleted it before it began a new job; court also noted that defendants had provided the requested information upon plaintiff?s request prior to filing of litigation

Nature of Case: Breach of Contract

Electronic Data Involved: WinOPS data

Aventa Learning, Inc. v. K12, Inc., —F. Supp. 2d—, 2011 WL 5438690 (W.D. Wash. Nov. 8, 2011)

Dec 01 2011

Key Insight: Applying Washington State law, court held that return of employer-issued laptop containing attorney-client privileged information without asserting a claim of privilege as to those contents resulted in waiver of privilege; even where privilege was asserted as to certain contents prior to return of employer-issued laptop, privilege was waived where employer?s policies negated expectation of privacy, including as to web based email accessed on the laptop; court?s analysis applied four part test from In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)

Nature of Case: Breach of separation agreement, conversion

Electronic Data Involved: Privileged emails

Zarwasch-Weiss v. SKF Economos USA, Inc., No. 1:10-cv1327, 1:10-cv-1548, 2011 WL 4628745 (N.D. Ohio Oct. 3, 2011)

Dec 01 2011

Key Insight: In three separate instances, court concluded plaintiff deliberately destroyed or failed to produce relevant electronic devices and documents; culpably contributed to the destruction of a relevant hard drive; and deliberately destroyed relevant financial information and ordered repayment of plaintiff?s attorneys? fees and costs related to the adjudication of their motions for sanctions and repayment of attorneys? fees and costs related to plaintiffs construction of evidence of relevant financial information, made much more difficult by defendant?s spoliation

Nature of Case: Breach of employment contract and related claims and cross claims related to theft and use of confidential information

Electronic Data Involved: ESI

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