eDiscovery Import – Page 97 – Electronic Discovery Law

Ashton v. Knight Transp., Inc., No. 3:09-CV-0759-B, 2011 WL 734282 (N.D. Tex. Feb. 22, 2011)

Dec 01 2011

Key Insight: Where, in a case arising from a fatal accident, the court determined that defendants? failure to preserve the tires of the involved truck and Qualcomm messages between the driver and the truck company was in bad faith and where that failure resulted in prejudice to the plaintiff, the court ordered that defendants? pleadings and defenses to liability be struck and, ?because defendants? misconduct led to the late discovery of a potential claim for punitive damages,? granted plaintiff leave to file an amended her complaint to add such a claim

Nature of Case: Hit and run

Electronic Data Involved: Qualcomm messages (“email type messages”)

In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299 (N.D. Ga. 2011)

Dec 01 2011

Key Insight: Providing significant analysis of the issue of spoliation, court denied plaintiff?s motion for sanctions for defendant?s alleged failure to adequately preserve evidence where government?s investigation did not trigger a duty to preserve evidence as to the class action plaintiffs in this case and thus, no duty to preserve existed for purposes of the spoliation analysis; court also found that even where duty to preserve existed, plaintiffs also failed to establish prejudice resulting from the alleged failure to preserve and that defendant acted in bad faith by failing to prevent the loss of ESI pursuant to defendant?s usual document retention policies and the automatic functions of its server

Nature of Case: Class action related to alleged collusion in implementation baggage fees

Electronic Data Involved: Emails, ESI

Hock Foods, Inc. v. William Blair & Co., LLC, No. 09-2588-KHV, 2011 WL 884446 (D. Kan. Mar. 11, 2011)

Dec 01 2011

Key Insight: Based upon affidavits of defendant?s General Counsel and Litigation Technology Project Manager identifying the burden of responding to plaintiff?s requests for production, including potentially searching 12,786 boxes of hardcopy and 12 terabytes of data, court denied motion to compel but ordered defendant to provide a supplemental response to plaintiff?s request after conducting less burdensome searches and encouraged cooperation to agree upon what those searches would entail; court also denied motion to compel additional searching for particular issues where defendant estimated the cost of search per gigabyte at between $100 and $300 with a total resulting cost of between $1.2 million and $3.6 million

Nature of Case: Dispute regarding proper payment pursuant to contract

Electronic Data Involved: ESI

Peterson v. Seagate, 2011 WL 861488 (D. Minn. Jan 27, 2011)

Dec 01 2011

Key Insight: Where court found that plaintiffs? EEOC claims did not provide sufficient notice of the likelihood of a nationwide class action and where defendant destroyed the ESI of the former employees at issue in accordance with its usual document retention policies, court found that plaintiff had failed to show that information was destroyed in an effort to suppress the truth or that they had suffered any prejudice and declined to order sanctions

Nature of Case: Class action alleging age discrimination in employment

Electronic Data Involved: ESI of former employees

In re Royce Homes, LP, No. 09-32467-H4-7, 2011 WL 873428 (Bankr. S.D. Tex. Mar. 11, 2011)

Dec 01 2011

Key Insight: Court rejected employee of debtor?s assertions of privilege where employee failed to properly assert such privilege in his privilege log; assuming arguendo that emails were privileged, court found that employee had waived privilege in several ways: 1) employee had no reasonable expectation of privacy in communications sent or received on employer?s computer system and thus had no privilege in communications with his attorney; 2) employee provided unqualified access to emails by third parties, one of whom he asked to review his emails to identify which were privileged despite her lack of legal education; and 3) employee allowed trustee to have unqualified access to the emails by failing to object to their production to the trustee when informed that the emails would be produced

Nature of Case: Bankruptcy

Electronic Data Involved: Emails between employee and attorney sent on company computer system

ANZ Advanced Techs., LLC v. Bush Hog, LLC, 2011 WL 814463 (S.D. Ala. Jan. 26, 2011)

Dec 01 2011

Key Insight: Where plaintiffs admitted to fabricating evidence and failed to comply with court orders to produce certain hard drives and other data storage and instead argued, among other things, that the hard drives etc. were in possession of an unrelated foreign corporation (ANZ International) and that ANZ USA was not involved in the discovery violations (including the fabrication of evidence), the court rejected such arguments upon establishing the connection between ANZ Int. and ANZ USA and ordered that plaintiffs? claims be dismissed

Nature of Case: Contract dispute

Electronic Data Involved: Fabricated evidence, hard drives, other storage devices

Diesel Mach., Inc. v. Manitowoc Crane, Inc., No. CIV 09-4087-RAL, 2011 WL 677458 (D.S.D. Feb 16, 2011)

Dec 01 2011

Key Insight: Where parties had an agreement to produce in native format which the court had approved and adopted but later agreed that defendant could produce some information in hard copy (in light of defendant?s representation that hard copy production could be more quickly accomplished prior to pending depositions), the court found the parties agreement to produce in native format was modified and declined to compel re-production citing the burden and expense (including duplication of time and expense of conducting redactions, for example)

Nature of Case: Breach of contract and claims arising from South Dakota Dealer Protection Act

Electronic Data Involved: ESI produced in hard copy

United States v. Fetter, No. 3:10 CR 411, 2011 WL 1060301 (N.D. Ohio Feb. 18, 2011)

Dec 01 2011

Key Insight: Where video of defendant?s alleged destruction of evidence while in a holding cell was automatically recorded over pursuant to the department?s standard policy and was not preserved because none of the officers involved in the investigation realized the images from cameras in the cells were recorded (as opposed to merely ?stream[ed]? to allow observation), court found no bad faith and thus no violation of due process arising from destruction of ?potentially useful? evidence (as opposed to exculpatory evidence)

Nature of Case: Criminal (sex trafficking)

Electronic Data Involved: Video of defendant while in holding cell

U.S. Holdings, Inc. v. Suntrust Bank, No. 09-23222-CIV, 2011 WL 1102822 (S.D. Fla. Mar. 23, 2011)

Dec 01 2011

Key Insight: Where Bates labeling documents already produced in native format would have required defendants to convert the documents to an alternative format and would have cost between $16,000 and $75,000, the court denied plaintiff?s motion to compel Bates labeling, despite the requirement to do so as laid out in the Discovery Practices Handbook appended to the local rules in the Southern District of Florida

Nature of Case: Breach of fiduciary duty, negligence, fraud in the inducement, etc.

Electronic Data Involved: ESI in native format

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350 (W.D.N.Y. 2011)

Dec 01 2011

Key Insight: Where, in response to the at-issue request for production, defendant failed to identify its archives as a source of information that it would not search or to object to plaintiff?s request and, in fact, represented that it would produce responsive information, court found the information sought was relevant, that plaintiff?s motion was timely, and ordered defendant to search its archives upon rejecting defendant?s untimely assertions of undue burden and cost

Nature of Case: Breach of contract, claims under the Communications Act, and various tort claims

Electronic Data Involved: Archived emails

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