Case Summaries – Page 216 – Electronic Discovery Law

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

People v. Chromik, No. 3-09-0686, 2011 WL 1346923 (Ill. App. Ct. Mar. 29, 2011)

Dec 01 2011

Key Insight: Transcript of text messages created when student read the messages to her principal who typed them into a Word document and which were admittedly altered by spell check were properly admitted as evidence by the trial court where the trial court ?ensured that all knew the document was exactly what it purported to be: a transcription of the victim?s reading of the text messages?; where both parties were allowed to argue over interpretation; where defendant was allowed to present evidence that indicated spell check likely resulted in alterations; where the dates and time contained on the transcription and attributed to text messages from defendant mirrored the dates and times identified in the phone company?s records; and where the victim testified as to the content of the messages and defendant did not deny sending them

Nature of Case: Criminal sexual assault

Electronic Data Involved: Text messages

Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL 2551546 (E.D. Cal. June 24, 2011)

Dec 01 2011

Key Insight: After defendant reported that the estimated cost of searching its electronically stored information using the search terms provided by plaintiff would be ?at least $54,000? because of the need to hire an outside contractor to assist, the court found that the discovery requests imposed a burden on the defendant that warranted cost shifting and ordered the parties to met and confer to determine an appropriate cost sharing agreement; Reconsideration denied in Couch v. Wan, No. CV F 08-1621 LJO DLB, 2011 WL 291118 (E.D. Cal. July 20, 2011)

Nature of Case: Violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act (“RICO”)

Electronic Data Involved: ESI

Hard Drive Prods., Inc. v. Does 1-69, No. C-11-03004 HRL, 2011 WL 2784578 (N.D. Cal. July 14, 2011)

Dec 01 2011

Key Insight: Court granted motion for expedited discovery allowing plaintiff to serve Rule 45 subpoenas on ISPs to obtain information sufficient to identify Doe defendants

Nature of Case: Copyright infringement

Electronic Data Involved: Names of ISP subscribers

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

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