Case Summaries – Page 233 – Electronic Discovery Law

Govan Brown & Assoc., Ltd. v. Does 1&2, 2010 WL 3076295 (N.D. Cal. Aug. 6, 2010)

Dec 01 2010

Key Insight: Pursuant to 28 U.S.C. ? 1782, court granted in part plaintiff?s application to conduct discovery in a foreign proceeding and ordered that plaintiff may serve upon Google, Inc. a subpoena seeking the IP address associated with an account from which an allegedly defamatory email was sent, but denied the application to the extent it sought to serve a subpoena for information related to an email sent from a separate account that merely read, ?Have a nice day? and which could not form the basis for a cause of action under the laws of Canda; to the extent the IP addresses for the two email accounts was the same, however, Google would be allowed to disclosure that information

Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL 3718867 (W.D. Pa. Sept. 20, 2010)

Dec 01 2010

Key Insight: Stating that ?it is defendant?s responsibility to demonstrate objectively reasonable compliance? with the rules regarding ESI, the court found that defendants had failed to do so and denied their motion for a protective order; granting plaintiff?s motion to compel, the court ordered the parties to meet and confer to identify custodians for the purpose of limited discovery/sampling and to identify search terms to be utilized; court ordered defendants to identify potentially responsive ESI sources and to provide a reasonable description of the information stored therein in compliance with Local Rule 26.2

Electronic Data Involved: ESI, emails

Ahroner v. Israel Discount Bank of New York, 913 N.Y.S.2d 181 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Court upheld grant of adverse inference for intentional or grossly negligent destruction of a hard drive ordered to be produced for inspection and noted that because the destruction was intentional or grossly negligent, the court?s inference as to the erased emails? relevance was proper

Electronic Data Involved: Contents of hard drive

Conceptus, Inc. v. Hologic, Inc., No C 09-02280 WHA, 2010 WL 3911943 (N.D. Cal. Oct. 5, 2010)

Dec 01 2010

Key Insight: Where plaintiff had previously produced a particular two page letter in prior litigation but was unaware of that production because it was not used in any deposition or pleading in that case, and where plaintiff?s counsel agreed, in subsequent litigation, to produce those documents that were previously produced in the prior litigation, which included the letter, and did not conduct a privilege review because of the belief that such a review had been conducted before production in the prior litigation, the court found that plaintiff did not take reasonable steps to prevent the disclosure and therefore waived privileged and reasoned, in part, that ?[m]erely asserting that prior counsel inadvertently disclosed the letter does not meet the burden of proof,? citing Plaintiff?s failure to describe the circumstances surrounding the letter?s original production or any steps to prevent the disclosure

Electronic Data Involved: two page letter

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

People v. Spykstra, 234 P.3d 662 (Colo. 2010)

Dec 01 2010

Key Insight: Reversing the order of the trial court, the Supreme Court established 5 part test to challenge the issuance of a pretrial subpoena and quashed the subpoenas issued by defendant where, by ordering the relevant individuals to submit their computers to inspection by defendant?s expert, the trial court ?improperly converted the subpoenas into the functional equivalent of search warrants? and where defendant failed to establish any factual basis demonstrating a reasonable likelihood that the emails sought existed or that they contained material evidence

Nature of Case: Criminal

Electronic Data Involved: Emails, Contents of hard drives

Catagory:Case Summaries