Case Summaries – Page 232 – Electronic Discovery Law

Estate of Eva Boles v. Nat?l Heritage Realty, Inc., 2010 WL 1759026 (N.D. Miss. Apr. 27, 2010)

Dec 01 2010

Key Insight: Where production of defendants? general ledger was necessary because there was no suitable alternative to provide the information, but where defendants? counsel asserted that such production would require ?hundreds of hours? and involve great expense, court noted defendants failure to produce any details in support of its assertion and that plaintiff was willing to bear the reasonable costs and granted plaintiff?s motion to compel

Electronic Data Involved: General ledger in electronic format

Estate of Boles v. Nat?l Heritage Realty, Inc., 2010 WL 3087472 (N.D. Miss. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court denied motion for reconsideration of order compelling electronic production of defendants? general ledger and specifically rejected defendants? Rule 34 argument that because plaintiff failed to state the form of production, it could produce in hard copy, where defendants failed to specify a particular form of production in their response, where defendants failed to timely raise the Rule 34 issue (despite filing several motions discussing production of the ledger), and where defendants also failed to produce the evidence in the form in which it was ordinarily maintained or in a reasonably usable form as is required by the rule; a Motion to Stay this order was thereafter denied, See Estate of Boles v. Nat?l Heritage 2010 WL 3218386 (N.D. Miss. Aug. 7, 2010)

Electronic Data Involved: Electronic copy of general ledger

Jannx Med. Sys., Inc. v. Methodist Hosps., Inc., 2010 WL 4789275 (N.D. Ind. Nov. 17, 2010)

Dec 01 2010

Key Insight: Where absent a specific request for native production plaintiff produced ESI in .pdf format and where defendant objected that .pdf format was not in compliance with Rule 34 because it was not produced in the ?fully searchable and manipulable? format in which it was normally maintained, the court acknowledged that ?there are circumstances in which .pdf format may satisfy discovery obligations? but found that plaintiff had converted the ESI into a more burdensome format in contravention of Rule 34 and granted the motion to compel ?to the extent that Defendants? request that Plaintiff produce responsive information in an electronic database format that allows the information to be reasonably usable, i.e., fully searchable and manipulable, with the connections between the data fields intact?

Electronic Data Involved: Electronic database data

Howell Educ. Assoc. MEA/NEA v. Howell Board of Educ., 2010 WL 290515 (Jan. 26, 2010)

Dec 01 2010

Key Insight: Reversing the trial court, appellate court found personal emails retained on public school?s email system were not public records and therefore not subject to disclosure pursuant to Michigan?s Freedom of Information Act; court also concluded that violation of an acceptable use policy that does not expressly provide that emails are subject to FOIA does not render personal emails subject to disclosure pursuant to FOIA

Nature of Case: FOIA

Electronic Data Involved: Personal emails

Alexander v. Archuleta County, 2010 WL 363390 (D. Colo. Jan. 27, 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to timely produce relevant communications despite a court order and offered no explanation for the delay and where the court determined the delayed production resulted in prejudice to the defendants, that the prejudice could not be cured by additional discovery, and that plaintiff?s discovery conduct was ?in bad faith and willful?, court ordered two affidavits in support of plaintiff?s response to summary judgment stricken and prohibited plaintiff from introducing those witnesses? testimony at trial and for plaintiff to pay defendant?s reasonable attorney?s fees and expenses

Nature of Case: Wrongful termination

Electronic Data Involved: Emails

Sunnen Prods. Co. v. Travelers Casualty and Surety Co. of Am., 2010 WL 743663 (E.D. Mo. Feb. 25, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought discovery regarding similar insurance policies, claims and lawsuits of other insureds, court found the information ?discoverable? and rejected defendant?s claims of undue burden based on alleged inability to conduct an electronic search citing a prior court decision (involving defendant and similar claims of burden) for the proposition that plaintiff would not be denied discovery because of defendant?s election ?to have inadequate mens [sic] of accessing data?

Nature of Case: Insurance litigation

Electronic Data Involved: ESI

Field Day, LLC v. County of Suffolk, 2010 WL 1286622 (E.D.N.Y. Mar. 25, 2010)

Dec 01 2010

Key Insight: Court declined to find County employees culpable for spoliation of ESI, but ordered monetary sanctions against the County for negligently failing to adequately preserve ESI and declined harsher sanctions where many documents were produced in hard copy and thus the resulting prejudice was unclear; court?s analysis of culpability included recognition that the alleged spoliation occurred in 2003-2004, during a time when the law of preservation of ESI was not fully developed

Nature of Case: Claims arising from denial of mass gathering permit

Electronic Data Involved: ESI

Maldonado v. Union Pac. R.R. Co., 2010 WL 1980319 (D. Kan. May 18, 2010)

Dec 01 2010

Key Insight: Court denied motion for a protective order preventing disclosure of the video of defendant?s train colliding with plaintiffs? car where defendant?s concerns about video manipulation or commercial exploitation was unwarranted and unsupported by evidence beyond speculation; court ordered production of event recorder data for a relevant time period and, because of the need for proprietary software to analyze the data, ordered defendant to either secure permission for plaintiff to utilize the software independently and produce the data and software outright or make the data and software available at a mutually agreeable time and place for plaintiff?s evaluation

Nature of Case: Claims arising from train vs. car collision

Electronic Data Involved: Video of collision & event recorder data and related software

URS Corp. v. Isham, 2010 WL 2428841 (D.S.C. June 11, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for preservation and inspection of defendant?s relevant hardware but found plaintiff?s proposed protocol overly burdensome and thus ordered adherence to defendant?s proposed protocol which called for more targeted searches using terms proposed by plaintiff and provided a more reasonable time frame for the production of documents and privilege logs; parties to split the cost

Nature of Case: Claims arising from employees’ departure from plaintiff’s company to join defendant’s

Electronic Data Involved: Hard drives

Shanahan v. Superior Court, 2010 WL 2840254 (Cal. Ct. App. July 21, 2010)

Dec 01 2010

Key Insight: Court ruled against waiver as to privileged documents sent from and stored on deceased employee?s work computer where the employee had a reasonable expectation of privacy under the ?unusual circumstances? presented, including that the employee believed he was permitted to communicate with his attorney via his computer because the attorney was paid for by the company for the purpose of negotiating employee?s employment agreement and because of the failure of the employer?s use policy to expressly negate the expectation of privacy by failing to specifically reference waiver of attorney-client privilege, among other reasons; court also ruled that dissemination of a draft memo to the employee?s secretary did not waive privilege where the secretary was assigned to the employee, frequently edited and printed documents for the employee, and understood that such documents were to be kept confidential

Nature of Case: As executor, widow sued husband’s employer for breach of compensation agreement

Electronic Data Involved: Privileged emails, ESI

Catagory:Case Summaries