eDiscovery Import – Page 98 – Electronic Discovery Law

In re Oil Spill by the Oil Rig ?Deepwater Horizon? in the Gulf of Mexico on April 20, 2010, No. MDL 2179, 2011 WL 1193030 (E.D. La. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court rejected claim of marital privilege and a request for the return or destruction of emails allegedly protected from disclosure where petitioner and wife communicated through company?s email accounts and where there was no reasonable expectation of privacy in light of company policies which ?clearly demonstrate? that employees? communications are not private, that they may be monitored or accessed by the employer, and that they are subject to production by a subpoena

Nature of Case: Claims arising from oil spill

Electronic Data Involved: Emails

Suntrust Mortg., Inc. v. AIG United Guaranty Corp., No. 3:09cv529, 2011 WL 1225989 (E.D. Va. Mar. 29, 2011)

Dec 01 2011

Key Insight: For fraud on the court (attributed to plaintiff as the result of employee?s alteration of emails) and for abuse of the litigation process (resulting from in-house counsel and management?s failure to adequately investigate the existence of other altered emails and subsequent reliance on one such altered email in the filing of their first complaint), court ordered plaintiff to pay attorneys? fees and costs associated with defendant?s sanctions motion but denied the request for additional sanctions, including dismissal, adverse jury instructions, and issue preclusion

Nature of Case: Breach of insurance contract

Electronic Data Involved: Altered emails

Hudson v. AIH Receivable Mgmt. Servs. LLC, No 10-2287-JAR-KGG, 2011 WL 1402224 (D. Kan. Apr. 13, 2011)

Dec 01 2011

Key Insight: Where defendant, ?a small company with 13 employees? who presented evidence that it was not profitable, objected to discovery pursuant to 26(b)(2)(C)(iii) based on an estimated cost of $2,630 to comply with plaintiff?s request (which included, in part, the cost of necessary software to complete the review), the court declined to shift the cost of production but stated that defendant could choose to produce un-reviewed ESI to plaintiff, thus shifting the cost of software necessary for review, but if defendant wished to review the data first, it would bear the costs of doing so

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Miami-Dade Cnty. v. Johnson Controls, Inc., No. 10-20881-CIV, 2011 WL 1548969 (S.D. Fla. Apr. 21, 2011)

Dec 01 2011

Key Insight: Where 3rd party established the burden of responding to defendant?s subpoena, including that compliance would result in a total cost of approximately $118,000, the court ordered defendant to bear the reasonable cost of the 3rd party?s compliance with the subpoena, subject to the conditions set forth by the court

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Larkin v. Trinity Lighting, Inc., No. 3:10cv109-TSL-MTP, 2011 WL 1496248 (D. Miss. Apr. 20, 2011)

Dec 01 2011

Key Insight: Where questions remained as to whether plaintiff deleted files from his work laptop in bad faith before returning it, whether defendant suffered any prejudice as a result and whether the information sought to be forensically retrieved was likely to be of any substantial benefit, court denied defendant?s motion to compel restoration of the laptop at plaintiff?s expense, but concluded that defendant could retrieve the information at its own costs if it so chose

Nature of Case: Claims alleging failure to pay bonus payment

Electronic Data Involved: ESI

Miller v. City of Plymouth, No. 2:09-CV-205 JVB, 2011 WL 1458419 (N.D. Ind. Apr. 15, 2011)

Dec 01 2011

Key Insight: Court upheld ruling that defendants did not destroy video evidence thereby warranting sanctions where plaintiff sought police recordings starting in 2004, but where no retention policy existed during that time period except officers? discretion to retain recording and many of the requested recordings had been recorded over long before plaintiffs? traffic stop; where the relevant officer was not asked to save tape of certain traffic stops until 2010; where plaintiffs? accusations of spoliation assumed that relevant video existed and ?overlooked the significant trouble Defendants have experienced in operating and maintaining their digital systems;? and where defendants had no control over the fact that the systems hard drive recorded over old data

Nature of Case: Claims arising from traffic stop

Electronic Data Involved: Video

Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., No. 2:07-cv-1924, 2011 WL 1748620 (W.D. Pa. May 6, 2011)

Dec 01 2011

Key Insight: Court affirmed recovery of defendants? e-discovery costs pursuant to Title 28 U.S.C. 1920(4) following substantial analysis of the issue and a determination that the services paid for were necessary to retrieve and prepare the ESI for production and were an ?indispensible part of the discovery process? and where the costs requested, as reduced by the Clerk of Court, were reasonable

Nature of Case: Antitrust

Electronic Data Involved: ESI

Hard Drive Prods., Inc. v. Does 1-118, No. C 11-01567 LB, 2011 WL 1431612 (N.D. Cal. Apr. 14, 2011)

Dec 01 2011

Key Insight: Where plaintiff demonstrated that (1) the Doe defendants are real people who may be sued in federal court; (2) it has unsuccessfully attempted to identify the Doe defendants prior to filing this motion; (3) its infringement and civil conspiracy claims against the Doe defendants could survive a motion to dismiss; and (4) there is a reasonable likelihood that service of the proposed subpoenas on the ISPs will lead to information identifying the Doe defendants, court granted motion for expedited discovery to allow plaintiffs to serve subpoenas seeking information to identify the unknown plaintiffs

Nature of Case: Copyright infringement

Electronic Data Involved: Information related to identity of Does 1-118

Commonwealth v. Purdy, SJC-10739, 2011 WL 1421367 (Mass. Apr. 15, 2011)

Dec 01 2011

Key Insight: Where Commonwealth offered evidence that at-issue emails originated from an account bearing defendant?s name and acknowledged to be used by defendant; that the emails were found on the hard drive of defendant?s computer for which he supplied the passwords; that at least one email contained a picture of defendant, and that in another, he provided an accurate description of ?the unusual set of services provided by the salon and of himself (?hairstylist, art and antiques dealer, [and] massage therapist?), the judge did not err in concluding the emails were properly authenticated as having been authored by the defendant, despite defendant?s denial of the same

Nature of Case: Convictions related to prostitution

Electronic Data Involved: Emails

Thermal Design, Inc. v. Guardian Building Prods., Inc., No. 08-C-828, 2011 WL 1527025 (E.D. Wis. Apr. 20, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel searching of all archived email and shared network drives where significant ESI had already been produced; where defendant established that the additional searching would take several months and result in an additional cost of $1.9 million dollars, plus an additional $600,000 to review; and where plaintiffs offered little evidence to justify the burden and argued instead that because defendant was a ?series of large companies with considerable resources,? the burden was not too great; court specifically reasoned ?Courts should not countenance fishing expeditions simply because the party resisting discovery can afford to comply.?

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Author - eDiscovery Import