Case Summaries – Page 217 – Electronic Discovery Law

Tener v. Cremer, 931 N.Y.S.2d 552 (N.Y. App. Div. 2011)

Dec 01 2011

Key Insight: Addressing the obligation of a non-party to produce ESI that was deleted through ?normal business operations?, the court found that the Naussau Guidelines provided the best approach to determine the third party?s obligation to produce allegedly inaccessible data where the guidelines called for a cost/benefit analysis involving the difficulty of the production at issue; court found plaintiff had shown ?good cause? for needing the requested ESI but that there was insufficient evidence of the non-party?s alleged burden of production (including, for example, whether the at-issue ESI had actually been deleted, whether it could actually be retrieved, the cost of such retrieval, etc.) and thus remanded the case to the Supreme Court for ?a hearing on whether the information plaintiff seeks is ?inaccessible? and hence whether [the non-party] has the ability to comply with the subpoena; the appellate court reversed the Supreme Court?s ruling holding the non-party in contempt for failure to comply with a judicial subpoena

Nature of Case: Defamation

Electronic Data Involved: Identity of all persons who accessed the internet using a certain computer or internet portal on a certain day

Gentex Corp. v. Sutter, No. 3:07-CV-1269, 2011 WL 5040893 (M.D. Pa. Oct. 24, 2011)

Dec 01 2011

Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation

Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act

Electronic Data Involved: ESI

Zhi Chen v. District of Columbia, —F. Supp. 2d.—, 2011 WL 6879746 (D.D.C. Sept. 9, 2011)

Dec 01 2011

Key Insight: Where the general manager of the defendant Red Roof Inn claimed to have attempted to preserve video surveillance footage by asking for it to be copied but alleged that she later discovered that the footage was not copied and that the original footage had been automatically recorded over by that time, the court found, ?based on overwhelming evidence of Red Roof?s cavalier attitude toward its discovery obligations,? that defendant?s spoliation was grossly negligent and ordered an adverse inference and that defendant pay plaintiff?s reasonable attorneys? fees and costs associated with the preparation for the motion for sanctions

Nature of Case: Unlawful detention and related claims

Electronic Data Involved: Surveillance footage

Boucher v. First Am. Title Ins. Co., No. C10-199RAJ, 2011 WL 5299497 (W.D. Wash. Nov. 4, 2011)

Dec 01 2011

Key Insight: Following discussion of the breadth of original requests and subsequent narrowing of scope, court addressed duty of defendant to produce evidence from third-party who provided defendant with mortgage-related documents and from independent agents and ordered production from those parties where evidence indicated that at least some agents had contractually agreed to produce documents thus evidencing defendant?s control and where provider of mortgage-documents did not object to disclosure

Nature of Case: Class action

Electronic Data Involved: ESI from third parties

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Dec 01 2011

Key Insight: For Defendant?s and counsel?s discovery violations, including delayed production of relevant information, wrongful certification that discovery was complete, producing a 500-page document 35 times, and failing to conduct adequate searches of responsive information, court evaluated the Enrenhaus factors and imposed monetary sanctions to be paid by both Defendant and its counsel; court?s analysis was particularly critical of counsel who the court concluded had ?abdicated its responsibility to exercise oversight of the discovery process? and who the court found to be subject to sanctions pursuant to both Rule 37 and 26

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: ESI

Prosecution Not Required to Re-Produce Voluminous ESI in Categorized Batches

Nov 23 2011

United States v. Rubin/Chambers, Dunhill Ins. Servs., No. 09 Cr. 1058, 2011 WL 5448066 (S.D.N.Y. Nov. 4, 2011)

In this case, defendants were charged with crimes “arising out of an alleged conspiracy . . . to illegally rig bids, fix prices, and manipulate the market for investment instruments known as municipal derivatives.” Following the prosecution’s production of ESI, defendants sought to compel re-production in categorized batches relating to transactions with certain characteristics. Defendants’ motion was denied.

Client & Counsel Sanctioned for Spoliation where Plaintiff was Instructed to “Clean Up” His Facebook Page

Nov 18 2011

Lester v. Allied Concrete Co., Nos. CL.08-150, CL09-223 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011)

In this case, significant monetary sanctions were ordered against the plaintiff and his counsel for egregious discovery violations, including intentional deletion of pictures on Plaintiff’s Facebook page per the instructions of Counsel and subsequent efforts to cover those instructions up, among others.

California Federal Court Grants Motion to Adopt Version of Model Order on E-Discovery in Patent Cases Promulgated by Federal Circuit

Nov 10 2011

DCG Sys., Inc. v. Checkpoint Techs., LLC, No. C-11-03792 PSG, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011)

In this patent case, Defendant sought an order adopting a modified version of the Model Order on E-Discovery in Patent Cases (“Model Order”) recently promulgated by a subcommittee of the Advisory Council of the Federal Circuit (available here). Significantly, the Model Order limits the discovery of email by placing limitations on the allowable number of custodians and search terms. According to the court, such limitations “are designed to address the imbalance of benefit and burden resulting from email production in most cases.” The order proposed by the Defendant similarly limited the discovery of email.

Court Denies Motion to Re-Tax Costs Related to Conversion of ESI, Including Costs for “Project Management”

Nov 02 2011

Jardin v. DATAllegro, Inc., No. 08-CV-1462-IEG (WVG), 2011 WL 4835742 (S.D. Cal. Oct. 12, 2011)

Here, the court denied Plaintiff’s “motion to stay, deny, or re-tax the Clerk’s taxation of costs awarded to Defendants.” Specifically, the court declined to deny or re-tax costs awarded for converting data to the .TIFF format or to deny or re-tax costs related to a project manager who “oversaw the process of converting data to the .TIFF format to prevent inconsistent or duplicative processing.” Regarding the latter, the court reasoned that “[b]ecause the project manager’s duties were limited to the physical production of data, the related costs are recoverable.”

Court Acknowledges Calls for Caution when Applying “Proportionality Test” to Preservation, Denies Motion for Protective Order

Oct 21 2011

Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)

KPMG sought a protective order to limit the scope of its preservation obligation or to shift a portion of its preservation costs to plaintiffs. At the time, the parties awaited ruling on plaintiffs’ Motion to Certify and KPMG was preserving more than 2,500 hard drives at a cost of more than $1,500,000. Following the court’s analysis, the motion was denied.

Catagory:Case Summaries