Case Summaries – Page 212 – Electronic Discovery Law

Chen v. LW Restaurant, Inc., No. 10 CV 200 (ARR), 2011 WL 3420433 (E.D.N.Y. Aug. 3, 2011)

Dec 01 2011

Key Insight: Court imposed sanctions, including preclusion of evidence/witnesses, an adverse inference instruction (upon plaintiffs? request) and payment of attorney?s costs and fees for defendant?s discovery violations, including repeated failure to produce evidence despite court orders, and ?loss? of a flash drive and its contents under circumstances which supported a finding of gross negligence or intentional spoliation; court invited plaintiffs to seek sanctions against defense counsel, too, for counsel?s egregious violations of his duties, including failure to issue a litigation hold, failure to be candid regarding the loss of evidence, and failure to ensure compliance with client?s discovery obligations, among others

Nature of Case: Employment litigation (wages)

Electronic Data Involved: Flash drive containing original payroll records for purpose of analyzing metadata

People v. Lesser, No. H034189, 2011 WL 193460 (Cal. Ct. App. Jan. 21, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed trial court?s admission of printouts of online chats preserved by a police officer, despite the fact that the version presented at trial contained emoticons that prior versions presented at preliminary examination did not or that introductory lines for the chats were not preserved in the printouts, where the officer ?offered sufficient evidence of the method by which he preserved the text? and where he testified that ?the printouts were accurate and complete? representations of the chats; the printouts were not inadmissible hearsay as argued by defendant because they were not offered for the truth of the matters asserted but rather were offered to show that defendant in fact made the statements

Nature of Case: Attempted distribution of harmful matter to a minor over the internet and related charges

Electronic Data Involved: Instant messages

Lynn v. Gateway Unified School Dist., No. 2:10-CV-00981-JAM-CMK, 2011 WL 6260362 (E.D. Cal. Dec. 15, 2011)

Dec 01 2011

Key Insight: Where plaintiff unlawfully acquired emails from defendant?s computer system and attempted to utilize them to bolster his case, court granted defendant?s motion for sanctions and precluded plaintiff from ?using the emails, using their contents, or attempting to introduce any evidence about the contents of these emails at trial,? court also granted defendant?s motion to disqualify plaintiff?s counsel and counsel?s entire firm, where the court found counsel took possession of the emails despite knowing they were obtained illegally, among other ethical violations

Nature of Case: Employment discrimination

Electronic Data Involved: Unlawfully obtained emails

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

Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2011 WL 2297661 (D. Colo. June 9, 2011)

Dec 01 2011

Key Insight: Court denied request for taxation of costs related to conversion of documents into electronic format for discovery purposes where defendant failed to establish that the conversion costs were ?necessarily incurred in the case preparation?; court denied motion for taxation of costs related to creation of secure database in furtherance of responding to a legitimate discovery request where the court was not authorized to award such costs pursuant to the relevant statute and where it was unaware of authority allowing adjustments to the division of costs based on undue burden, an argument that was available ?during the discovery process?

Electronic Data Involved: Conversion of ESI

E.E.O.C. v. DHL Express, No. 10 C 6139, 2011 WL 6825516 (N.D. Ill. Dec. 28, 2011)

Dec 01 2011

Key Insight: Where DHL produced ?28,000 spreadsheets worth of information? with an index containing metadata for each spreadsheet and any emails to which the spreadsheets were attached but where plaintiff nonetheless claimed that the burden of sifting through the spreadsheets was unduly onerous and sought to compel production of information to identify each spreadsheet and that defendant organize them according to request, the court noted its authority under Rule 34 to impose requirements ?different from those in the rule? and ordered defendant to identify which request each spreadsheet or group of spreadsheets was responsive to and to provide an explanation for spreadsheets not attached to an email

Electronic Data Involved: Spreadsheets

Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)

Dec 01 2011

Key Insight: Court found no waiver of plaintiff?s claims of privilege resulting from the production of one privileged email where, pursuant to FRE 502(a) the waiver was not intentional as established by the sworn statement of plaintiff?s counsel that he was not aware that the plaintiff?s sister, the other party to the relevant email, was an attorney

Nature of Case: Hostile work environment, retaliation, intentional infliction of emotional distress

Electronic Data Involved: Privileged email

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

United States v. Hamilton, No. 2:11CR13-HEH, 2011 WL 1366481 (E.D. Va. Apr. 11, 2011)

Dec 01 2011

Key Insight: Employer?s policy notifying employees that there should be no expectation of privacy as to information ?sent, received, accessed, or stored? on work computer served to negate reasonable expectation of privacy for purposes of fourth amendment and to negate marital privilege as to emails stored on employee?s computer, even where those emails were sent at a time when no use policy was in place

Nature of Case: Criminal indictment

Electronic Data Involved: Email

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, No. 09-23411-CIV, 2011 WL 772855 (S.D. Fla. Feb. 19, 2011)

Dec 01 2011

Key Insight: Where defendants ?failed to properly conduct complete, thorough and timely searches of ESI responsive to Plaintiffs? discovery requests,? which the evidence showed resulted from ?a lack of familiarity and/or training in searching and producing ESI?, the court declined to impose default judgment and instead recommended that defendants? Motions for Summary Judgment be denied and ordered that defendants retain a third party consultant or vendor to perform a search for responsive documents, that responsive ESI be produced in a prescribed format, and that defendants pay plaintiffs? attorneys fees and costs

Nature of Case: Claim for damages arising from defendants? alleged failure to provide proper ship management and care

Electronic Data Involved: ESI

Catagory:Case Summaries