Case Summaries – Page 191 – Electronic Discovery Law

Anthony v. Atlantic Group, Inc., Nos. 8:09-cv-0283-JMC, 8:09-cv-02942-JMC, 2012 WL 4009490 (D.S.C. Sept. 12, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel ?electronically stored information, electronic mail, and social networking data? related to the issues raised in this case and, noting plaintiffs ?direct access? to the information requested, declined to require defendant to seek the information from the relevant service providers

Nature of Case: Employment litigation

Electronic Data Involved: Email, Social media content

El Camino Resources, Ltd. v. Huntington Nat?l Bank, No. 1:07-cv-598, 2012 WL 4808741 (W.D. Mich. May 3, 2012)

Dec 01 2012

Key Insight: Magistrate Judge recommended the adoption of the approach of the Third Circuit in Race Tires Am. Inc. v. Hoosier Racing Tire Corp., which limits the recoverable costs related to electronic discovery pursuant to 28 U.S.C. ? 1920 and thus granted in part plaintiffs? motion to disallow costs

Nature of Case: Business tort claims

Electronic Data Involved: Taxable costs related to production of ESI

Mahaffey v. Marriot Int?l, Inc., —F. Supp. 2d —, 2012 WL 4833370 (D.D.C. Oct. 11, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions for defendant?s alleged destruction of video tape and hard copy where, as to the video tape, the court determined that defendant ?could not reasonably have known? that it had an obligation to preserve the at-issue video at the time it was destroyed, and that no sanctions were therefore merited and where, as to the hard copy documents, the plaintiff was unable to establish that the at-issue documents actually existed or that, if they did, they were destroyed with the requisite culpable state of mind (where the alleged spoliation resulted from a broken sprinkler which flooded a storage room), and where even if defendant had been negligent, plaintiff could not establish that the allegedly destroyed evidence was relevant to his claims

Nature of Case: Personal injury arising from alleged elevator accident

Electronic Data Involved: Video, hard copy

U.S. Bank Nat?l Assoc. v. PHL Variable Ins. Co., No. 12 Civ. 6811(CM)(JCF), 2012 WL 5395249 (S.D.N.Y. Nov. 5, 2012)

Dec 01 2012

Key Insight: Considering burdensome nature of subpoenas to non-parties, court found that cost shifting was appropriate and ordered plaintiff to bear the search, collection and production costs associated with the non-parties? compliance with the subpoenas; non-parties? were ordered to bear their own costs associated with privilege review, but, in order to give them ?the option of conducting a more economical analysis while minimizing the risk of waiver,? the court entered a non-waiver order pursuant to Rule 502(d) that would preclude the disclosure of privileged documents from resulting in waiver in any proceeding

Nature of Case: Alleged breach of insurance policies and violations of various related laws

Electronic Data Involved: ESI

Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2012 WL 6809721 (E.D.N.C. Nov. 7, 2012)

Dec 01 2012

Key Insight: Court granted motion to award costs for imaging electronic information for document production where the court found that ?those costs fall within ?the cost of making copies of any materials? and were ?necessarily obtained for use in the case?? pursuant to 28 U.S.C. ? 1920(4) but declined to award costs incurred to purchase hard drives for document production where the court reasoned that the drives were reusable and ?properly considered overhead.?

Nature of Case: Copyright infringement, trade secret misappropriation and related claims

Electronic Data Involved: Taxable cost related to production of ESI

Reid v. Ingerman Smith, LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012)

Dec 01 2012

Key Insight: Finding that Plaintiffs? social media content could be relevant to her claims, court ordered photos, communications and posts since January 2008 be produced to Plaintiff?s counsel for review and that relevant portions be produced in accordance with the court?s specific instructions (e.g., photos posted by third parties may be subject to production if relevant, posts and communications by third parties are relevant to the extent they contain observations of the plaintiff, etc.)

Nature of Case: Sexual harassment

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

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012)

Dec 01 2012

Key Insight: On petition for discretionary review, Court of Criminal Appeals affirmed appeals court?s finding that state proffered sufficient evidence to establish a prima facie showing that social-networking webpage offered into evidence was authored by the defendant based upon sufficient circumstantial evidence to ?support a finding that the exhibits were that they were purported to be?; court?s opinion discussed proper procedures for authenticating evidence

Nature of Case: Criminal

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

Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL 3779113 (E.D. Tenn. Aug. 31, 2012)

Dec 01 2012

Key Insight: Addressing post-judgment discovery issues, including plaintiff and receiver?s request to have certain hard drives imaged, court rejected defendants? claim that certain computers contained privileged information where those assets were sold to a third-party and thus any privilege was waived; court further ordered that personal computer and ipad belonging to an individual defendant should be imaged for preservation purposes, to be retained by the expert performing such imaging pending further orders from the court

Electronic Data Involved: Business and personal hard drives and ipad

Abbot Point of Care, Inc. v. Epocal, Inc., No. CV-08-S-543-NE, 2012 WL 7810970 (N.D. Ala. Nov. 5, 2012)

Dec 01 2012

Key Insight: Court declined to allow recovery of costs related to maintenance of an electronic discovery database but allowed recovery of costs related to ?processing of electronic documents, including conversion of native files to ?TIFF? format for production to Abbott; conversion of document[s] from ?TIFF? format to a searchable format; importing and loading of documents to an electronic database; production of electronic documents; and the associated project and technical support?

Electronic Data Involved: ESI taxable costs

Brocade Commc?ns Sys. v. A10 Networks, Inc., No. 10-CV-03428-LHK, 2012 WL 70428 (N.D. Cal. Jan. 9, 2012)

Dec 01 2012

Key Insight: Finding that plaintiff had shown good cause for requiring production of ?not reasonably accessible information,? the court granted plaintiff?s motion to inspect an individual defendant?s hard drive noting that such inspections had been allowed by other courts in cases of alleged misappropriation of trade secrets and further citing the relevance of the hard drive?s contents to the underlying claims, the inability to obtain the evidence elsewhere, and defendant?s inability to explain its statement that the hard drive in question had been ?recycled?; court held that plaintiff was ?not entitled to set the conditions of the inspection unilaterally nor select the person who will perform it? and ordered the parties to confer to agree on a protocol

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Contents of hard drive

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