Case Summaries – Page 239 – Electronic Discovery Law

Biax Corp. v. Nvidia Corp., 2010 WL 3777540 (D. Colo. Sept. 21, 2010)

Dec 01 2010

Key Insight: In an opinion addressing numerous discovery issues, the court granted in part plaintiff?s motion to compel and ordered the parties to submit a status report, preferably jointly, proposing a discreet number of proposed custodians and search terms, and to submit a joint-cost sharing agreement ?for the hefty cost of searching electronic files as represented by [defendant] with an accompanying affidavit in support of the anticipated costs?; court reasoned in footnote that ?justice require[ed]? cost sharing in light of the expense of searching electronic files and in light of the amount of documentation already produced by the defendant

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

United States v. McNealy, 625 F.3d 858 (5th Cir. 2010)

Dec 01 2010

Key Insight: Where the original computer seized from defendant was ?destroyed as the result of a miscommunication between divisions of the federal government? (computer was destroyed by the Asset Forfeiture Division working independently of the attorneys handling the criminal case), the District Court did not err in finding that the computer was not destroyed in bad faith and that such destruction did not violate the defendant?s due process rights

Nature of Case: Possession and receipt of child pornography

Electronic Data Involved: Computer/hard drive seized as evidence

Moore v. Shands Jacksonville Med. Ctr., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010)

Dec 01 2010

Key Insight: Where, absent specification of the format of production from either party, defendant produced video surveillance footage in what it considered a ?reasonably usable? format which required particular software for viewing, and where that software was available for free download on the internet, the court indicated it was ?not sympathetic? to plaintiff?s claims of undue burden as to the downloading the software and found that defendants had produced the video in a reasonably usable form

Nature of Case: Employment discrimination

Electronic Data Involved: Surveillance footage

Patrick Collins, Inc. v. Does 1-1219, 2010 WL 5422569 (N.D. Cal. Dec. 28, 2010)

Dec 01 2010

Key Insight: Court granted motion for expedited discovery to allow plaintiff to serve subpoenas on certain Internet Service Providers to obtain information identifying the Doe Defendants so that plaintiff could complete service of process

Nature of Case: Copyright Infringement

Electronic Data Involved: Name of ISP subscriber

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

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

Catagory:Case Summaries