Case Summaries – Page 215 – Electronic Discovery Law

Millsaps v. Aluminum Co. of Amer., No. 10-84924, 2011 WL 6019220 (E.D. Pa. Dec. 2, 2011)

Dec 01 2011

Key Insight: Where, in a separate but similar case involving the same plaintiffs? counsel and defendant, defendant was previously prepared to produce the scanned contents of approximately 1300 boxes when the case settled, and where plaintiff in the present case (with the same plaintiffs? counsel) sought production of those documents in his case, and where the disagreement focused on which party should be allowed to search the documents for relevant information (because defendant felt that plaintiff?s search would identify all documents as relevant and plaintiff felt that defendant would not identify relevant documents that were not obviously relevant but nonetheless important), the court ordered the parties to confer to develop search terms and agreed, if necessary, to consider up to 100 disputed terms submitted by the parties

Nature of Case: Wrongful death, asbestos

Electronic Data Involved: Scanned hard copy

JFB Hart Coatings, Inc. v. AM Gen., LLC, 764 F.Supp.2d 974 (N.D. Ill. 2011)

Dec 01 2011

Key Insight: Court found it ?more likely than not? that plaintiff?s fabrication of an exhibit was in bad faith and necessitated sanctions and ordered an evidentiary hearing where evidence revealed that plaintiff had significantly altered evidence and subsequently provided misleading information to opposing counsel and the court regarding the same

Electronic Data Involved: Fabricated evidence

In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?

Electronic Data Involved: Contents of personal computer, storage devices

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)

Dec 01 2011

Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance footage

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

McCargo v. Texas Roadhouse, Inc., No. 09-cv-02889-WYD-KMT, 2011 WL 1638992 (D. Colo. May 2, 2011)

Dec 01 2011

Key Insight: Where willful, bad faith spoliation of relevant video tapes despite a duty to preserve (triggered by an internal complaint of harassment and receipt of two preservation requests from plaintiff) resulted in prejudice to the plaintiff, court ordered sanctions, including an adverse inference allowing (but not requiring) the jury to infer that certain tapes would have been harmful to defendant, an order precluding defendant from the introduction of certain evidence, and a prohibition on cross examination of plaintiff?s witnesses as to certain topics

Nature of Case: Racial discrimination

Electronic Data Involved: Video

United States v. Tummins, No. 3:10-00009, 2011 WL 2078107 (M.D. Tenn. May 26, 2011)

Dec 01 2011

Key Insight: Court granted motion to compel production of defendant?s hard drive with all child pornography files redacted where the court determined that the likelihood that child pornography would remain on the drive after steps to redact were taken was ?relatively low? and where the government?s inspection accommodations in lieu of production did not provide the statutorily required ?ample opportunity for inspection? where the restrictions on inspection limited the time allowed for inspection and required the forensic examiner to leave his equipment unattended

Nature of Case: Criminal/ possession of child pornography

Electronic Data Involved: Hard drive

Pink Lotus Entm?t, LLC v. Does 1-46, No. C-11-002263 HRI, 2011 WL 2470986 (N.D. Cal. June 21, 2011)

Dec 01 2011

Key Insight: After consideration of the four relevant factors to determine whether there is good cause to allow expedited discovery and upon a determination that plaintiff had met its burden, court granted motion to allow expedited discovery for the limited purpose of obtaining indentifying information from alleged infringers? ISPs

Nature of Case: Copyright Infringement

Electronic Data Involved: Identifying information from internet service providers

English v. Wal-Mart Stores, Inc., No. 3:10-cv-00080-ECR-VPC, 2011 WL 3496092 (D. Nev. Aug. 10, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for loss of surveillance tape where duty to preserve arose upon request for the evidence-three months after the fall occurred- and where plaintiff did not show that defendant destroyed or lost the video and photographs with ?culpable intent or in a negligent and possibly reckless manner after Defendant?s duty to preserve the evidence arose.?

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance

Miller v. Four Winds Int. Corp., No. 2:10-cv-00254-CWD, 2011 WL 5080032 (D. Idaho Oct. 25, 2011)

Dec 01 2011

Key Insight: Where plaintiff testified in deposition that she had saved relevant voice messages two years prior and that they were still available but later indicated that the messages were lost as a result of water damage to her phone and the passage of time (her service carrier indicated the messages were automatically deleted after a certain time), the court found that because she had previously indicated that the messages were available and because there was no evidence presented of when the messages became inaccessible, spoliation had occurred; court indicated an adverse inference ?may be appropriate? but withheld a final determination until it could consider the evidence offered at trial

Nature of Case: Product liability

Electronic Data Involved: Voicemail

Catagory:Case Summaries