Case Summaries – Page 226 – Electronic Discovery Law

Stearman v. State, No. 29 A02-1002-CR-214, 2010 WL 59827 (Ind. Ct. App. Aug. 11, 2010)

Dec 01 2010

Key Insight: Court held transcript of chat cut and pasted into word document in its entirety was properly authenticated where the officer testified that the transcript was a ?true and accurate and full and complete copy of the exact chat [he] had with the defendant?; Best Evidence Rule was satisfied where ?any printout or other output readable by sight shown to reflect the date accurately is an ?original?? in the context of information stored in a computer and where there was no evidence that the original messages, which were removed from the computer when the instant message program was removed, were erased in bad faith

Nature of Case: Solicitation of a minor

Electronic Data Involved: Printed transcripts of instant messages

Lorentz v. Sunshine Health Prods., Inc., 2010 WL 1856265 (S.D. Fla. May 10, 2010)

Dec 01 2010

Key Insight: Court granted motion for protective order where plaintiff?s request for inspection of defendants? hard drives was found ?per se overbroad and unduly burdensome when balanced against the need cited? and where plaintiff failed to explain whether a less intrusive option had been attempted, ?as per Rule 34?; despite granting the motion, court noted willingness to entertain a motion to inspect a particular hard drive if provided with a protocol for such inspection indicating a method to protect the non-responsive data

Diocese of Harrisburg v. Summix Dev. Co., 2010 WL 2034699 (M.D. Pa. May 18, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference in favor of defendant where plaintiff failed to preserve backup tapes which ?may have contained emails with evidence to support defendants? claims?, despite a duty to do so

Electronic Data Involved: Backup tapes

Smith v. Mpire Holdings, LLC v. 2010 WL 3294184 (M.D. Tenn. Aug. 12, 2010)

Dec 01 2010

Key Insight: Court denied motion to compel defendants to sign releases authorizing ISPs to disclose ?all account information, electronic data, information and emails associated with numerous internet website domains? where ?given the nature of the transactions? at issue, such information would be likely to involve the confidential matters of numerous third parties and where the court was unable to protect those parties from ?unauthorized disclosure of their confidential records and information?; court analysis included finding that defendants had control of the electronic information in the custody of the ISPs ?because, according to federal statute, they may consent to grant access to their information?

Electronic Data Involved: All account information, electronic data, information and emails associated with numerous internet website domains

Silverman v. Shaoul, 913 N.Y.S.2d 870 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Court held that ?precedent shows that the requesting party bears the cost of electronic discovery when the data sought is ?not reasonably available? upon a showing of undue burden and denied defendant?s order to show cause to compel plaintiffs to pay the costs where defendants data was neither archived nor deleted but simply stored in a number of places and interspersed with other business documents

Electronic Data Involved: ESI

G2 Prod., LLC v. Does 1-83, 2010 WL 253336 (D.D.C. Jan. 21, 2010)

Dec 01 2010

Key Insight: Court granted Motion for Leave to Take Expedited Discovery for the purpose of discovering the identities of defendants, including their true name, address, phone number, etc. because good cause existed for such discovery where identification of the defendants was necessary for the case to progress; court ordered subpoenaed ISPs to notify the subscribers in question to provide an opportunity to quash, but ordered ongoing preservation of the subpoenaed information until resolution of any such motion

Nature of Case: Copyright infringement

Electronic Data Involved: Name of ISP subscribers

Gordanier v. Montezuma Water Co., 2010 WL 935665 (D. Colo. Mar. 11, 2010)

Dec 01 2010

Key Insight: Court denied motion to compel production of ESI from the computer of plaintiff?s supervisor where plaintiff was aware of the existence of the computer and its email capabilities prior to filing suit but nonetheless agreed in the scheduling order that no electronic discovery would be required and thus could not show ?good cause? to amend the order

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI from hard drive of plaintiff’s supervisor

Merck Eprova AG v. Gnosis S.P.A., 2010 WL 1631519 (S.D.N.Y. Apr. 20, 2010)

Dec 01 2010

Key Insight: Court found defendants were ?at least? grossly negligent for failing to issue a written litigation hold and ordered defendants to pay the costs of plaintiff?s motion to compel as well as a $25,000 fine; in devising its sanction, the court considered defendants other conduct, including defendants? deficient search for responsive documents, defense counsel?s lack of meaningful supervision in the discovery process, and defendants? decision to withhold certain documents deemed insufficiently important, among other things

Nature of Case: Lanham Act/ mislabeled ingredients

Electronic Data Involved: Emails

State v. Thompson, 777 N.W.2d 617 (N.D. 2010)

Dec 01 2010

Key Insight: Where the rules of evidence require authentication sufficient to establish that the evidence in question is what the proponent claims, admission of image of text message was no abuse of discretion where defendant did not argue that the image was not an accurate reflection of the message and where the complainant (victim) and defendant established by their testimony that defendant?s cell phone number and signature were on the image and provided other circumstantial evidence to establish that the image was what it was claimed to be

Nature of Case: Criminal prosecution for simple assault

Electronic Data Involved: Image of text message

Camesi v. Univ. Pittsburgh Med. Ctr., 2010 WL 2104639 (W.D. Pa. May 24, 2010)

Dec 01 2010

Key Insight: In an order addressing a number of discovery concerns, court ordered the parties to meet and confer to resolve ESI disputes and ordered defendants to ?at a minimum? ensure that all files stored in electronic format were produced in a ?searchable? format and to re-produce ESI in native format absent a showing of undue hardship or expense; court ordered defendants to produce metadata and indicated willingness to excuse plaintiff?s failure to request it earlier in light of plaintiff?s ?repeated, good faith requests to meet and confer?

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: ESI

Catagory:Case Summaries