Case Summaries – Page 247 – Electronic Discovery Law

Daugherty v. Murphy, 2010 WL 4877720 (S.D. Ind. Nov. 23, 2010)

Dec 01 2010

Key Insight: Where defendants established that the requested data extracts proposed by plaintiffs would take 5 months and ?about $100,000? the court granted defendants? motion for a protective order and ordered defendants to execute the data extractions which they had proposed and which they represented would be far less burdensome; court denied plaintiff?s motion to compel defendants? production of ?file layouts? for the purpose of revising their request for data extracts but acknowledged that defendants? failure to previously produce ?file layouts? was a serious issue and its wiliness to address sanctions upon a motion from plaintiffs

Nature of Case: Class action

Electronic Data Involved: Data extracts

Cruz v. G-Town Partners, L.P., 2010 WL 5297161 (Del. Super. Ct. Dec 3, 2010)

Dec 01 2010

Key Insight: Court denied motion for adverse inference for defendant?s ?inadequately explained, perhaps even suspect? inability to produce photographs of the alleged accident scene (the bathroom of plaintiff?s apartment) where plaintiff ?did not exhaust every available mechanism to obtain these photographs? (by failing to obtain a forensic analysis of the computers alleged to have stored the photos, for example) and where the facts underlying the absence of the photos were ?sufficiently equivocal and incomplete to defeat plaintiff?s claim of entitlement to an adverse inference? and where the probative value of the photos was ?speculative at best?; court?s denial of adverse inference resulted in denial of application of Res Ipsa Loquitur and thus the entry of summary judgment in favor of defendants

Nature of Case: Personal Injury

Electronic Data Involved: Photographs stored electronically and sent via email

MVB Mortgage Corp. v. Fed. Deposit Ins. Corp., 2010 WL 582641 (S.D. Ohio Feb. 11, 2010)

Dec 01 2010

Key Insight: Answering question of whether inadvertent disclosure of privileged information to testifying expert resulted in waiver of privilege, court ?conclude[ed] that a claim of inadvertent waiver cannot be used to withhold information from opposing counsel once it has found its way into the expert?s hands ? however unintentional that may be.?

Electronic Data Involved: Email

Mformation Tech., Inc. v. Research in Motion, Ltd., 2010 WL 3154441 (N.D. Cal. Aug. 9, 2010)(Not for Citation)

Dec 01 2010

Key Insight: Where nearly two months following notice of inadvertent production of privileged materials plaintiff undertook a review of its entire production and production process and thereafter attempted to recall an additional 55 inadvertently produced documents, the court acknowledged that plaintiff ?was perhaps not as diligent as defendant would have liked? in initiating its search, but denied the motion for a finding of waiver

Electronic Data Involved: Privileged materials

Cherrington Asia Ltd. v. A&L Underground, Inc., 2010 WL 126190 (D. Kan. Jan. 8, 2010)

Dec 01 2010

Key Insight: Court denied sanctions for defendants? alleged ?document dump? of a hard drive containing both responsive and non-responsive documents as maintained in the ordinary course of business where, upon plaintiffs? initial objection, defendants re-produced the hard drive with irrelevant documents segregated and with a tool allowing the hard drive to be word-searched and where, despite plaintiffs? alleged discovery of evidence reflecting defendants? purposeful efforts to obstruct discovery, plaintiffs waited 15 months to bring their motion and were thus ?simply too late?

Electronic Data Involved: Computer hard drive

Kohler v. Kindred Nursing Ctrs., Inc., 2010 WL 709182 (Cal. Ct. App. Mar. 2, 2010)

Dec 01 2010

Key Insight: Appellate court upheld ruling that copies of website attached to affidavit attempting to establish contacts sufficient for personal jurisdiction were not authenticated and therefore inadmissible where affiant asserted that the pages were copies of defendant?s website but failed to present evidence showing the website was created by defendant or that the statements in the printouts were made by persons authorized to speak on defendant?s behalf; court noted that ?self-authenticating? provisions in Evidence Code ?operates to establish only that a computer?s print function has worked properly. The presumption does not operate to establish the accuracy of the printed information.?

Nature of Case: Claims arising from death of patient while in nursing facility

Electronic Data Involved: Printed pages from website

Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D. Pa. Mar. 31, 2010)

Dec 01 2010

Key Insight: Where third-party (and former defendant) signed stipulation to preserve and produce ESI as if still a party to the litigation and later sought reimbursement for the review and production of data in a particular database, court ordered a database be created comprised of the four custodians at issue, that plaintiff pay $4085 to the vendor as a ?start-up fee? (pursuant to their agreement to do so), and that plaintiff and third-party split the remaining costs of creating the database, but ordered third-party to bear the costs of its own review prior to production

Nature of Case: Antitrist litigation

Electronic Data Involved: Database

Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010)

Dec 01 2010

Key Insight: Where MySpace messages were admitted into evidence upon the testimony of the recipient which established that the messages were sent by someone with access to the alleged sender?s MySpace page but that did not establish the identity of the person who actually sent the communications, appellate court ruled the messages were admitted in error, but that the error did not create a substantial likelihood of a miscarriage of justice; conviction was affirmed

Nature of Case: Appeal of murder conviction

Electronic Data Involved: MySpace messages

Universal Del. v. Comdata Corp., 2010 WL 2330284 (E.D. Pa. June 4, 2010)

Dec 01 2010

Key Insight: Defendant?s motion for a protective order precluding compliance with plaintiff?s? subpoena duces tecum was denied where defendant failed to establish the irrelevance of the data sought and failed to establish the unduly burdensome nature of producing the information requested or to assert that the information was not reasonably accessible and where the court determined that an existing protective order was sufficient to protect any confidential information produced

Nature of Case: Antitrust litigation

Electronic Data Involved: Emails, ESI, hard copy

Moore v. Napolitano, 723 F. Supp. 2d 167 (D.D.C. 2010)

Dec 01 2010

Key Insight: District court upheld sanction precluding defendant from presenting evidence of non-discriminatory reasons for non-promotion upon a prima facie showing of disparate treatment where defendant failed to conduct a reasonable search for responsive paper documents, despite a court order to do so, including providing ?ambiguous and deficient? search instructions to employees; failing to follow up when employees failed to uncover responsive information; and failing to credibly explain defendant?s search efforts, and where the Magistrate Judge properly concluded the sanction was proportional to the offense(s)

Nature of Case: Putative class action for discriminatory non-promotion

Electronic Data Involved: Hard copy

Catagory:Case Summaries