Case Summaries – Page 255 – Electronic Discovery Law

Supreme Court of Washington Holds Trial Court Did Not Abuse Discretion in Imposing $8,000,000 Default Judgment Pursuant to CR 37 for Defendant’s Willful Discovery Violations

Dec 11 2009

Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. 2009)

Plaintiff sustained injuries in an automobile accident that he alleged were caused in part by a defective seat design which allowed the seat to collapse. The case went to trial and plaintiff was awarded $8,000,000. The verdict was reversed on appeal for reasons related to plaintiff’s expert’s testimony and a new trial on the issue of liability was ordered.

Trial Court Violated Attorney-Client Privilege by Ordering In Camera Review

Dec 03 2009

Costco Wholesale Corp. v. Superior Court, S163335 (Cal. Nov. 30, 2009)

In 2000, Costco hired outside counsel to provide legal advice regarding the applicability of certain wage and overtime laws to its warehouse managers. In furtherance of providing such advice, counsel spoke with two managers Costco had made available to her. Thereafter, she provided Costco with a 22-page opinion letter addressing the question at issue. Several years later, plaintiffs in a class action against Costco sought to compel production of the relevant opinion letter arguing that the letter contained unprivileged information and that Costco had placed the contents in issue thereby waiving the privilege.

To resolve the question, the court ordered the letter be reviewed by a discovery referee who subsequently recommended production of the letter with heavy redactions. The referee reasoned that the factual information therein was not privileged and that while interviewing the two managers, the attorney had acted not as an attorney but as a fact finder. The trial court adopted the recommendation and ordered the letter produced. On appeal (and without ruling on the merits of the trial court’s order or its decision to refer the letter to a discovery referee for review), the court affirmed the order reasoning that Costco had failed to establish that the production would cause irreparable harm. The issue was appealed to the Supreme Court of California.

Finding Back-up Tapes “Not Reasonably Accessible” Court Declines to Compel Restoration of All but One Tape; No Sanctions for Deletion of Email Absent Evidence of Duty to Preserve or Showing of Bad Faith

Dec 03 2009

Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009)

In this breach of contract litigation, plaintiff filed a motion to compel defendant Watson Bowman Acme Corporation (“WABO”) to “remedy its spoliation of documents” by restoring and searching back-up tapes that potentially contained copies of emails that were deleted. Plaintiff also sought sanctions for the alleged spoliation. The court denied plaintiff’s motion to compel the restoration of all back-up tapes, following its determination that the burden and cost of such restoration rendered the documents not reasonably accessible and upon finding that plaintiff failed to establish good cause for such a search. However, as to a one tape determined to potentially contain the relevant deleted emails, the court granted plaintiff’s motion and ordered the tape be restored and searched. Regarding sanctions, the court denied plaintiff’s motion absent a clear indication of a duty to preserve at the time of the deletion and absent any evidence of bad faith.

Communications with Attorney Using Company Computer and Email Account Not Protected by Attorney-Client Privilege

Dec 01 2009

Alamar Ranch, LLC v. City of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009)

In this case arising from a land use and permitting dispute, the court ruled that emails sent by a non-party to her attorney using her work computer and work-assigned email address were not protected by the attorney-client privilege. In so holding, the court relied in large part upon the existence of company policy which put the employee on notice that her emails were subject to monitoring and were not confidential. Emails sent by the attorney to the employee’s work account were likewise unprotected where the attorney was on notice of the employee’s use of company email and should have recognized the risk that such emails were unprotected. As for emails sent to the attorney by other clients and copied to the employee, the court reasoned that such emails retained their privileged status where the senders (non-employees of the relevant company) were not on notice of the potential exposure of their emails to outside scrutiny.

EEOC v. Aaron Bros., Inc., 620 F.Supp.2d 1102 (C.D. Cal. 2009)

Dec 01 2009

Key Insight: Court granted motion to modify subpoena and rejected defendants arguments it was overly broad and unduly burdensome where the court found the evidence sought to be relevant and material and where defendants failed to present evidence of the actual costs of production, the size of their operations and there capacity to handle those costs, or that such costs would be unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, harcopy

Chirdo v. Mineral Techs., Inc., 2009 WL 2195135 (E.D. Pa. July 23, 2009)

Dec 01 2009

Key Insight: Court denied motion for spoliation sanctions for alleged destruction of emails where the emails were destroyed pursuant to defendant?s document retention policy five months prior to defendant?s receipt of plaintiff?s EEOC charge at a time when there was no duty to preserve and where plaintiff only vaguely alleged the contents of the documents and their relevance; human resources representative?s comment that plaintiff?s review was ?evidence in support of any future litigation? did not trigger duty to preserve because ?that is the primary purpose for the retention of human resource records? and because she did not know that the time of the statement that plaintiff would be terminated, let alone file a lawsuit

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Infor Global Solutions (MI), Inc. v. St. Paul Fire & Marine Ins. Co., 2009 WL 2390174 (N.D. Cal. Aug. 3, 2009)

Dec 01 2009

Key Insight: Where out of ?an apparent concern about the court imposed deadline,? plaintiff produced electronic documents without review because of technical difficulties opening certain files and emails and where plaintiff informed no one of the difficulties, sought no extension from the court for production, and did not qualify the production with any ?clawback? notice, court found that plaintiff had waived privilege and granted defendant?s motion to compel

Nature of Case: Insurance

Electronic Data Involved: Privileged ESI

Dilts v. Maxim Crane Works, L.P., 2009 WL 3161362 (E.D. Ky. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where defendants failed to record data stored on crane?s computer following death of two construction workers, but where plaintiffs offered no evidence to support their allegations that the data was manually destroyed or that the failure to photograph the display was unreasonable and where defendants presented evidence that data could not be downloaded from the crane?s computer and plaintiff failed to request the information downloaded in the first place, court declined plaintiffs motion for spoliation sanctions

Nature of Case: Negligence resulting in death

Electronic Data Involved: ESI stored on crane’s internal computer

Major Tours, Inc. v. Colorel, 2009 WL 3446761 (D.N.J. Oct. 20, 2009)

Dec 01 2009

Key Insight: Court granted protective order precluding obligation to search archived emails or emails stored on backup tapes where such emails were ?not reasonably accessible? in light of the estimated $1.5 million retrieval costs and because backup tapes are generally considered inaccessible, and where plaintiffs failed to establish good cause for such production; where defendant offered a ?scaled back alternative,? court ordered parties to split the cost of retrieving emails from a particular subset of backup tapes and provided plaintiffs the opportunity to compel searches of an additional subset of tapes – at their expense – including the cost of review

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Backup tapes, email

Benedict College v. Nat?l Credit Systs., 2009 WL 3839473 (D.S.C. Nov. 16, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s claims that discovery was produced as maintained in the usual course of business where documents were printed, copied, bates labeled and then converted to .pdf format and defendant?s objections that plaintiff?s requests were overly broad and burdensome, court granted plaintiff?s motion to compel and ordered defendant to produce all responsive documents, organized and labeled according to each request, and to produce to plaintiff and the court a ?faithful electronic copy? of its relevant database with metadata intact to allow for inspection if the need arose; doubting the sufficiency of defendant?s production of email, court ordered company?s president to order a diligent search for responsive documents and to certify by affidavit (using language provided by the court) that such a search was conducted and to provide an explanation for any missing or unfound documents

Nature of Case: Beach of contract

Electronic Data Involved: ESI, emails

Catagory:Case Summaries