eDiscovery Import – Page 113 – Electronic Discovery Law

Pensacola Firefighters? Relief Pension Fund Board of Trustees v. Merril Lynch Pierce Fenner & Smith, Inc., No. 3:09cv53/MCR/MD, 2011 WL 3512180 (N.D. Fla. July 7, 2011)

Dec 01 2011

Key Insight: Finding good cause, the court granted intervenors? motion for a protective order prohibiting plaintiff?s discovery of intervenors? privileged emails sent over defendant?s email servers (defendant was found to have waived its privilege as to such communications) where the intervenors were employees of defendant during the pendency of government investigations; had a joint defense agreement with defendant allowing communication for purposes of furthering their defense against the investigations; and held an objectively reasonable belief that their emails would remain confidential, in spite of defendant?s internal email policies warning that they were not, in light of defendant?s general counsel?s endorsement of and participation in such joint defense discussions

Electronic Data Involved: Intervenors’ privileged emails sent over defendant’s servers

In the Matter of an Application of the United State for an Order Authorizing the Release of Historical Cell-Site Information, No. `0-MC-897 (NGG), 2011 WL 3678934 (E.D.N.Y. Aug. 22, 2011)

Dec 01 2011

Key Insight: Court found reasonable expectation of privacy existed as to cumulative cell-site-location records such that they were protected by the Fourth Amendment and denied the Government?s motion pursuant to 18 U.S.C. ? 2703(c)(1) and (d) which sought two orders directing Verizon Wireless to disclose the cell-site-location records pursuant to the Stored Communications Act

Electronic Data Involved: Cell-site-location records

Benefitvision, Inc. v. Gentiva Health Servs., Inc., No. CV 09-473(DRH)(AKT), 2011 WL 3796324 (E.D.N.Y. May 23, 2011)

Dec 01 2011

Key Insight: Court ordered that non-privileged portions of email chains be produced with privileged portions redacted and properly logged; court addressed formatting and substantive issues with defendants? privilege log and ordered defendants to edit their log to remove the unnecessary data that was exported into the log from the documents database (e.g., dashes, arrows, etc.) to facilitate ease of use and to amend their descriptions to provide information sufficient to analyze the viability of the privilege claim

Electronic Data Involved: Emails

Suzlon Energy Ltd. v. Microsoft Corp.,671 F.3d 726(9th Cir. 2011)

Dec 01 2011

Key Insight: In this case, the Ninth Circuit affirmed the decision of the District Court that the Electronic Communications Privacy Act (ECPA) applies to foreign citizens and thus precluded Microsoft Corporation from producing a foreign citizen?s emails, which were stored on its server.

Electronic Data Involved: Emails stored on domestic server

Mgmt. Compensation Group Lee, Inc. v. Oklahoma State Univ., No. CIV-11-967-D, 2011 WL 5326262 (W.D. Okla. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where non-party OSU represented that responding to a subpoena seeking 6571 documents would require an expenditure of $1,761.24 and 55 hours of in-house counsel?s time, court found the burden was not so undue as to require protection from compliance and, in so finding, noted OSU?s financial interest in the outcome of the litigation, OSU?s close ties to a party in the case, and the amount in controversy of the underlying litigation (many millions of dollars)

Electronic Data Involved: ESI

Aircraft Fueling Sys., Inc. v. Southwest Airlines Co., No. 08-CV-414-GKF-FHM, 2011 WL 4954250 (N.D. Okla. Oct. 18, 2011)

Dec 01 2011

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email

Innis Arden Golf Club, Inc. v. O?Brien & Gere Eng?rs. Inc., No. CV106006581, 2011 WL 6117908 (Conn. Super. Ct. Nov. 18, 2011)

Dec 01 2011

Key Insight: Where plaintiff produced 64,350 pages of documents in electronic form without identifying what request the documents were responsive to, the court ordered the parties to cooperate to prepare a load file to assist in defendant?s review and ordered defendant to bear the cost and, where the court agreed with defendants that metadata was an ?important source for the defendants as part of the orderly production? of ESI, the court ordered the parties to cooperate ?in completing the metadata requested by the defendants in an appropriate format? and that ?outside costs, if any, other than copying costs for the metadata [would] also be borne by the defendants?

Electronic Data Involved: ESI, metadata

First Tenn. Bank Nat?l Assoc. v. Republic Mortg. Ins. Co. & Republic Mortg. Ins. Co. of N.C., No. 2:10-cv-02513-JPM-cgc, 2011 WL 6130808 (W.D. Tenn. Dec. 8, 2011)

Dec 01 2011

Key Insight: Addressing the requisite showing to establish undue burden in responding to discovery, the court identified ?several overarching principles to be considered:? 1) that a party must provide ?competent proof demonstrating the burden faced;? 2) that ?the fact that a party maintains its document in a manner than makes access difficult is not an excuse for refusing to produce relevant documents;? and 3) that the court must consider whether the ?claimed hardship is unreasonable in light of the benefits to be secured,? and upon review of the evidence presented, ordered plaintiff to respond to defendants? requests for production

Electronic Data Involved: ESI

Cute v. ICC Capital Mgmt., Inc., No. 6:09-cv-1761-Orl-22DAB, 2011 WL 3222133 (M.D. Fla. July 22, 2011)

Dec 01 2011

Key Insight: Court disallowed taxation of costs ?paid to third party vendors for the processing and production of 11,447 pages of electronic documents? where ?a charge for a third party vendor of this size should have been the subject of specific good faith discussions between counsel before being incurred if ICC expected to tax such as part of costs at the conclusion to the litigation.?

Electronic Data Involved: ESI

Paradigm Alliance, Inc. v. Celeritas Techs., LLC, No. 07-1121-EFM, 2011 WL 3849724 (D. Kan. Aug. 30. 2011)

Dec 01 2011

Key Insight: Where plaintiff was required to scan electronically produced documents ?using OCR to convert them into a searchable format to make them useable? and argued that such conversion was ?reasonably necessary? and the modern equivalent of ?fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case,? the court agreed and allowed the costs

Electronic Data Involved: ESI

Author - eDiscovery Import