Case Summaries – Page 217 – Electronic Discovery Law

State v. Pullens, 800 N.W.2d 202 (Neb. 2011)

Dec 01 2011

Key Insight: Court outlined possible ways to authenticate an email and found that the emails at issue were properly authenticated and admitted where some came from an account bearing the defendant?s name, where many were signed by the defendant, where some contained identifying information, including defendant?s social security number and telephone numbers and other personal facts, and where an investigator recalled that at least two of the email addresses contained in the at-issue emails had been used on the computer of the victim, with whom defendant was staying before her death; per the court, possible ways to authenticate an email include: by ?use of the email address, which many times contains the same of the sender;? by ?[t]he signature or name of the sender or recipient in the body of the email;? by evidence ?that an email is a timely response to an earlier message;? and by presentation of the ?contents of the email and other circumstances? which may show authorship

Nature of Case: Murder

Electronic Data Involved: Emails

Diabolic Video Prods., Inc. v. Does 1-2099, No. 10-CV-5865-PSG, 2011 WL 3100404 (N.D. Cal. May 31, 2011)

Dec 01 2011

Key Insight: Court granted motion to serve expedited discovery on Doe #1?s Internet Service Provider seeking information sufficient to identify the Doe for service but severed Does 2-2099 from the case upon finding that they had been improperly joined

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information for ISP subscribers

Han v. Futurewei Techs., Inc., No. 11-CV-831-JM (JMA), 2011 WL 4344301 (S.D. Cal. Sept. 15, 2011)

Dec 01 2011

Key Insight: Court denied defendant?s motion for an order requiring plaintiff to allow defendant to copy the hard drives of her personal computing devices where the discovery sought was not relevant to any claims or defenses in the case, where defendant proffered no evidence of its suspicions that plaintiff stole proprietary information, and where defendant?s proposed protocol would result in ?needless accessing? of plaintiff?s personal information and would be unduly burdensome to the plaintiff; where plaintiff nonetheless indicated a willingness ?to partake in some kind of protocol to provide [defendant] with the information it seeks? and submitted her own proposed protocol, the court adopted it

Nature of Case: Employment litigation

Electronic Data Involved: Contents of Plaintiff’s personal computing devices

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

LG Elecs. U.S.A., Inc., v. Whirlpool Corp., No. 08 C 0242, 2011 WL 5008425 (N.D. Ill. Oct. 20, 2011)

Dec 01 2011

Key Insight: Regarding recovery of costs for electronic discovery, court acknowledged that it was ?undisputable that electronic discovery costs are available under Section 1920(4)? but that there was ?scant legal authority? providing guidance on the matter and noted that it was difficult for the court to determine the reasonableness of the costs at issue and thus awarded half of the requested costs equaling $35,292.56

Nature of Case: Lanham Act: False Advertising

Electronic Data Involved: Costs

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.

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