Case Summaries – Page 234 – Electronic Discovery Law

State v. Dewitt, 2010 WL 5550243 (Ohio App. Ct. Dec. 29, 2010)

Dec 01 2010

Key Insight: Court overruled defendant?s assignment of error and found no violation of defendant?s due process rights resulting from the loss of a portion of the video surveillance footage of his traffic stop where defendant presented no evidence of bad faith in the destruction or loss, where defendant failed to seek a preservation order to prevent its destruction, and where defendant offered only speculation as to the exculpatory nature of the missing portions of video

Nature of Case: Criminal

Electronic Data Involved: Surveillance footage

Penberg v. Healthbridge Mgmt., No. 08 CV 1534(SJF), 2010 WL 2787616 (E.D.N.Y. Mar. 29, 2010)

Dec 01 2010

Key Insight: As sanction for plaintiff?s deliberate destruction of electronic documents in bad faith despite a duty to preserve triggered no later than his receipt of defendant?s affirmative defenses, court declined to order dismissal but ordered that plaintiff pay the attorneys fees and costs associated with defendant?s motion and the hiring of its forensics expert who established that spoliation had occurred; court denied motion to amend complaint to include cause of action for spoliation where ?such a claim is not cognizable under New York law?

Nature of Case: Disability discrimination, age discrimination, violations of FMLA

Electronic Data Involved: ESI, contents of computer

Humphrey v. Sallie Mae, Inc., 2010 WL 2522743 (D.S.C. June 17, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to conduct discovery prior to the Rule 26(f) conference where plaintiff sought to subpoena her own cell phone provider to obtain electronic data that was in danger of being purged pursuant to Verizon?s data retention policies and where the request was reasonable in light of the limited scope of the subpoena and the danger of irreparable harm to plaintiff if the data was lost

Electronic Data Involved: Electronic data in possession of cellular phone service provider

Johnson v. Neiman, 2010 WL 4065368 (E.D. Mo. Oct. 18, 2010)

Dec 01 2010

Key Insight: Court granted defendants? motion for a protective order precluding their obligation to produce evidence contained only on backup tapes where defendants made a sufficient showing of the burden to do so in terms of both money and time and where plaintiff was unable to establish good cause to compel the production; court found it ?most significant? that plaintiff had ?no idea what, if any? discoverable information could be obtained by the restoration and search of the tapes

Electronic Data Involved: Emails stored on backup tapes

Delta Fin. Corp. v. Morrison, 894 N.Y.S.2d 437 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where, upon en camera review, the court determined that counsel could not support his claim of privilege as to 55 emails and therefore sanctioned counsel $5000, appellate court affirmed the order and found the lower court had exercised proper discretion ?because [counsel?s] claim that the 55 e-mails were privileged was completely without merit in law and could not be supported by any reasonable argument for the extension, modification, or reversal of existing law.?

Nature of Case: Action to recover damages for breach of contract

Electronic Data Involved: Emails

People v. Taylor, 922 N.E.2d 1235 (Ill. App. Ct. 2010)

Dec 01 2010

Key Insight: Where defendant objected that state failed to properly authenticate silent surveillance video, appellate court agreed and concluded that ?where no witness can testify as to the authentication of the recording as truly and accurately portraying what he or she has seen or heard, the requirements for a silent-witness foundation must be met?

Nature of Case: Theft of property less than $300

Electronic Data Involved: Surveillance video

State v. Huggett, 783 N.W.2d 675 (Wis. App. Ct. 2010)

Dec 01 2010

Key Insight: Where police confiscated cell phones from the defendant and a key witness which contained highly relevant and exculpatory messages but failed to preserve them, court reasoned that ?[b]y creating an expectation of preservation [in the mind of the defendant], the State became responsible for ensuring that it occurred? and that its failure to do so deprived the defendant of due process such that dismissal with prejudice was appropriate

Nature of Case: Charges arising from shooting of intruder, allegedly in self defense

Electronic Data Involved: Voice mail and text messages on cell phones

Ross v. Abercrombie & Fitch Co, 2010 WL 1957802 (S.D. Ohio May 14, 2010)

Dec 01 2010

Key Insight: Where defendant resisted plaintiff?s motion to compel additional searching based upon having already conducted an initial, agreed-upon keyword search and upon unsubstantiated claims that additional searching would be unduly burdensome regardless of prior efforts, court rejected defendant?s arguments absent a sufficient showing of burden, granted plaintiff?s motion, and ordered the parties to meet and confer to reach agreement regarding the searches

Nature of Case: Securities class action

Electronic Data Involved: ESI

King Pharm. Inc. v. Purdue Pharma L.P., 2010 WL 2243872 (W.D. Va. June 2, 2010)

Dec 01 2010

Key Insight: Where defendant produced a partially redacted document containing four inadvertently unredacted pages, court found that the disclosure met the test of 502(b) and that privilege was not waived ?in light of the low volume of production? and defendant?s prompt action to ?rectify the error? upon learning of the disclosure; court also stated that ?the fact that the document had been reviewed and partially redacted does not by itself prevent the disclosure from being inadvertent? and that ?[t]he nature of the mistake in disclosing a document is not limited by the rules, and logically ought to include mistaken redaction, as well as other types of mistakes that result in disclosure.?

Nature of Case: Patent litigation

Electronic Data Involved: Four unredacted privileged pages of printed presentation

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Catagory:Case Summaries