Case Summaries – Page 247 – Electronic Discovery Law

Salamey v. Berghuis, 2010 WL 3488692 (E.D. Mich. June 30, 2010)

Dec 01 2010

Key Insight: Where surveillance footage stored on a hard drive was overwritten and lost, it was ?reasonable for the court of appeals to find that the police did not act in bad faith? where the investigator had no reason to believe that extensive review of the footage would be warranted and where there was no evidence that he purposefully erased the footage or allowed it to be rewritten and where the investigator testified he did not know the drive would rewrite itself while unplugged; court stated, ?even if [the investigator] and other police were grossly negligent in thinking that the hard drive would not rewrite itself when unplugged, that does not constitute bad faith?

Nature of Case: Criminal/Armed robbery

Electronic Data Involved: Surveillance footage stored on hard drive

Kwon v. Costco Wholesale Corp., 2010 WL 571941 (D. Haw. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion in limine and imposed an adverse inference resulting from defendant?s failure to preserve surveillance video tape potentially containing footage of the underlying accident upon finding that defendant was aware of its duty to preserve but took no steps to prevent the footage from being automatically recorded over; court denied request for default judgment where such a drastic step was not warranted absent evidence of the ?requisite willfulness, fault, or bad faith?; court declined to impose monetary sanctions

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Video surveillance tape

Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519 (Mo. App. Ct. 2010)

Dec 01 2010

Key Insight: Where trial court ordered a single plaintiff to produce all information in his possession or control that had been posted to a relevant web forum and where that plaintiff complied in part but withheld information that could have uniquely identified users and unposted private messages, the trial court abused its discretion in striking all plaintiffs? pleadings and dismissing their claims as a sanction for discovery violations where the request for discovery was overly broad in the first place and where the sanction imposed for failing to respond to such an overly broad request was ?unjust?

Nature of Case: Claims arising from city’s approval of development of property

Electronic Data Involved: ESI posted to website and electronic forum

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

Hunsaker v. Proctor & Gamble Mfg. Co., 2010 WL 5463244 (D. Kan. Dec. 29, 2010)

Dec 01 2010

Key Insight: Where defendant sought leave to serve a subpoena upon a public library seeking information related to plaintiff?s internet use to confirm his alleged job seeking activities, the court found the subpoena overly broad on its face and found that even a more limited subpoena would impose a burden and expense outweighed by the likely benefit; court found proposed subpoenas to internet job search sites (e.g. Monster) would result in an undue burden in light of the expansive definition of document, but that defendant would be allowed to serve the subpoenas if the list of ?definitions? was removed

Nature of Case: Violations of ADEA and ADA

Electronic Data Involved: ESI related to online job searches

Tamburo v. Dworkin, No. 04 C 3317, 2010 WL 4867346 (N.D. Ill. Nov. 17, 2010)

Dec 01 2010

Key Insight: Court declined to stay discovery pending resolution of defendants? Motion to Dismiss, but ?to ensure that discovery [was] proportional to the specific circumstances of the case, and to secure the just, speedy, and inexpensive determination of this action,? ordered phased discovery and (citing the court?s Case Management Procedures, the Seventh Circuit Electronic Discovery Pilot Program, and the Sedona Conference Cooperation Proclamation) ordered that the parties cooperate to prepare a phased discovery schedule

Nature of Case: Defamation, tortuous interference with business and civil conspiracy arising from dispute over contents of dog-pedigree software

Electronic Data Involved: ESI

People v. Flores, 941 N.E.2d 375 (Ill. App. Ct. 2010)

Dec 01 2010

Key Insight: Case was reversed and remanded where trial court erred in admitting videotape that was admittedly altered as substantive evidence (as opposed to demonstrative evidence, for which the foundation would have been sufficient) where ?an adequate foundation must show that the original has been preserved without change, addition, or deletion and that, if a copy is introduced into evidence, there must be a cogent explanation of any copying such that the court is satisfied that during the copying process there were no changes, additions, or deletions.?

Nature of Case: Driving with revoked or suspended license

Electronic Data Involved: Videotape made by witness

Secure Energy, Inc. v. Coal Synthetics, 2010 WL 597388 (E.D. Mo. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion to compel re-production of ESI in native format because the motion was untimely filed but went on to find that defendants? production of ESI in .PDF format was reasonable absent plaintiffs? request for production in native format and that compelling re-production would prejudice defendants where the metadata produced would likely necessitate additional expert involvement and discovery resulting in an adjustment to the case management schedule

Electronic Data Involved: ESI

Helm v. Alderwoods Group, Inc., 2010 WL 2951871 (N.D. Cal. July 27, 2010)

Dec 01 2010

Key Insight: Court ordered defendant to identify the authors and recipients of all documents listed on its privilege log and warned that failure or inability to do so would result in waiver; where defendant failed to separately log all messages within email chains, the court recognized a split in authorities regarding the need to itemize each message separately and concluded that in this case, the ?better approach? would be to require defendant to supplement its log with each message itemized

Electronic Data Involved: ESI, privileged email

Catagory:Case Summaries