eDiscovery Import – Page 110 – Electronic Discovery Law

Boucher v. First Am. Title Ins. Co., No. C10-199RAJ, 2011 WL 5299497 (W.D. Wash. Nov. 4, 2011)

Dec 01 2011

Key Insight: Following discussion of the breadth of original requests and subsequent narrowing of scope, court addressed duty of defendant to produce evidence from third-party who provided defendant with mortgage-related documents and from independent agents and ordered production from those parties where evidence indicated that at least some agents had contractually agreed to produce documents thus evidencing defendant?s control and where provider of mortgage-documents did not object to disclosure

Nature of Case: Class action

Electronic Data Involved: ESI from third parties

Gerlich v. United Stated Dept. of Justice, 828 F. Supp. 2d 284 (D.D.C. 2011)

Dec 01 2011

Key Insight: Plaintiff argued that Department of Justice had destroyed records in violation of Federal Records Act but court clarified that Federal Records Act rather requires agencies to decide which materials must be preserved and reasoned that where DOJ decided not to require preservation of notes related to employment candidates and thus such information was destroyed, no spoliation could be found where the destruction was in accordance with policy and occurred prior to initiation of the relevant investigation and the subsequent lawsuit

Nature of Case: Claims alleging wrongful employment decisions based on political affiliation

Electronic Data Involved: Notes taken regarding applicants

Holter v. Wells Fargo & Co., 281 F.R.D. 340 (D. Minn. May 4, 2011)

Dec 01 2011

Key Insight: Court found that relevant social media content was discoverable but declined to compel plaintiff to produce her login and password or her entire Facebook history (using the ?Download your own information? feature) and ordered plaintiff?s counsel to review plaintiff?s social media content for a period beginning in 2005 to identify information relevant to the categories identified by the court

Nature of Case: Employment discrimination, failure to accomodate

Electronic Data Involved: Social media content

In re Lazaridis, 865 F. Supp. 2d 521 (D.N.J. 2011)

Dec 01 2011

Key Insight: Court granted motion to quash subpoena issued pursuant to 28 U.S.C. ? 1782 upon finding the subpoena was unduly burdensome because of the time and/or cost that would be required to retrieve the information requested from the non-profit organization?s server, particularly in light of the availability of the information from the organization?s publically available website, and where the request implicated the First Amendment rights of the organization?s members who were subject to a privacy policy that assured them that their private information would be protected

Nature of Case: Foreign prosecution involving claims of libel and slander

Electronic Data Involved: ESI, messages from online forum(s)(stored in Structured Query Language)

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Dec 01 2011

Key Insight: For Defendant?s and counsel?s discovery violations, including delayed production of relevant information, wrongful certification that discovery was complete, producing a 500-page document 35 times, and failing to conduct adequate searches of responsive information, court evaluated the Enrenhaus factors and imposed monetary sanctions to be paid by both Defendant and its counsel; court?s analysis was particularly critical of counsel who the court concluded had ?abdicated its responsibility to exercise oversight of the discovery process? and who the court found to be subject to sanctions pursuant to both Rule 37 and 26

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: ESI

Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)

Dec 01 2011

Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. Ct. 2011)

Dec 01 2011

Key Insight: Conviction reversed and case remanded where trial court abused its discretion by admitting text messages found on the defendant?s cell phone without providing any evidence to establish that the defendant was the author of the at-issue messages, particularly where several messages referred to the defendant in the third person and ?and thus, were clearly not written by her?; court also found the text messages constituted inadmissible hearsay

Nature of Case: Drug conviction

Electronic Data Involved: Text messages

People v. Oyerinde, No. 298199, 2011 WL 5964613 (Mich. Ct. App. Nov. 29, 2011)

Dec 01 2011

Key Insight: Trial court properly determined that Facebook messages from Defendant to his victim were admissible non-hearsay as party admissions pursuant to MRE 801(d)(2); trial court (in bench trial) indicated that it reviewed Facebook messages from victim to defendant and from victim to her sister to ?provide context? for Defendant and victim?s relationship and, on appeal, appellate court reasoned that ?[r]egardless whether some of the messages should not have been admitted under MRE 803(3), the trial court did not rely on the messages to prove that any events actually occurred; judgment of the trial court was affirmed

Nature of Case: Criminal: First-degree felony murder and carjacking

Electronic Data Involved: Social Media Content (e.g., Facebook)

Francisco v. Verizon S., Inc., 272 F.R.D. 436 (E.D. Va. 2011)

Dec 01 2011

Key Insight: Court denied defendant?s request for recovery of costs incurred in processing, storage, and production of ESI

Hansen v. Chevron USA, Inc., No. 2:08-cv-00959-TS-DN, 2011 WL 2149770 (D. Utah May 31, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel forensic imaging of laptop containing responsive information where plaintiff did not elaborate on the ?need? for such imaging but rather just asked for it, where defendant offered to produce the relevant information from the laptop on a thumb drive, and where defendant indicated that the laptop contained both confidential and personal information

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