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.

Pom Wonderful LLC v. The Coca-Cola Co., No. CV 08-6237 SJO (FMOx), 2009 WL 10655335 (C.D. Cal. Nov. 30, 2009)

Dec 01 2009

Key Insight: Defendant produced 138 emails whose attachments that were not linked, claiming it produced the documents in ?the normal course of business? and had no obligation to re-link the attachments. The court disagreed, stating that ?plaintiff must have the ability to identify which attachments belong to which emails.? Defendant argued it could not automatically re-link the emails with the attachments, but would have to ?employ a tedious manual process.? The court indicated Defendant ?cannot seek to preclude plaintiff from pursuing discovery based on a record-keeping system that is plainly inadequate.? The court found Defendant did not meet the burden to prove it would be unduly burdensome to re-link the message units and granted the motion (Defendant must provide data/software to allow Plaintiff to re-link or must re-produce the 138 emails with their attachments). The court denied the motion to compel Defendant to produce purchase and valuation documents, finding Defendant met its burden to show the requested information is not relevant to this case.

Electronic Data Involved: Email

Am. Coal Sales Co. v. Nova Scotia Power, Inc., 2009 WL 467576 (S. D. Ohio Feb. 23, 2009)

Dec 01 2009

Key Insight: Finding that Plaintiff ?took reasonable precautions to avoid inadvertent disclosures by having two attorneys review documents prior to production; that inadvertent production of one document out of over 2,000 documents produced does not weigh in favor of waiver; that the extent of the waiver was not great because the document had not worked its way into the fabric of the litigation; that Plaintiff took prompt measures to rectify the disclosure; and that the overriding interests of justice and fairness did not conclusively counsel in favor of waiver,? court granted plaintiff?s motion for a protective order preventing use of inadvertently disclosed email; court found ER 502 applicable, despite application of alternative five-factor test by magistrate, and determined that court?s application of ER 502 did not prevent review of magistrate?s ruling where ER 502 and five-factor test were sufficiently consistent (see FN 1)

Nature of Case: Breach of contract, unjust enrichment, fraud

Electronic Data Involved: Email

N.H. Ball Bearings, Inc. v. Jackson, 969 A.2d 351 (N.H. 2009)

Dec 01 2009

Key Insight: Where evidence indicated high probability of spoliation by defendant including deleting data and running disk defragmenter and disk cleanup functions, among other things, but where evidence also indicated potential spoliation of ESI by plaintiff because of its failure to preserve the last accessed date of certain files, trial court gave adverse inference instruction to jury allowing finding of spoliation by either side and appellate court affirmed; appellate court also affirmed trial court?s denial of plaintiff?s request to access up to 250 hard drives for imaging upon finding the request ?too broad and burdensome? especially in light of trial court?s grant of access to plaintiff, upon narrowing its request, to back up tapes and specifically relevant hard drives

Nature of Case: Breach of confidentiality agreement

Electronic Data Involved: ESI

Kotler v. Woods, 2009 WL 1011701 (E.D.N.Y. Apr. 15, 2009)

Dec 01 2009

Key Insight: Where petitioner challenged his conviction on grounds that the state destroyed material evidence in the form of cassette tapes containing the dictation of a detective?s report and therefore violated his due process rights, court concluded petitioner failed to demonstrate a Brady violation where petitioner failed to show that the evidence would have been favorable to him and would have altered the outcome of his trial and where the trial court gave an adverse inference instruction related to the loss of the tapes that also made a change in the outcome unlikely

Nature of Case: Petition for writ of habeus corpus

Electronic Data Involved: Cassette tapes

Triton Constr. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115 (Del. Ch. May, 18, 2009)

Dec 01 2009

Key Insight: Finding that defendant should have expected litigation upon his resignation to accept employment with a competitor, court found that defendant ?intentionally, or at a minimum recklessly destroyed or failed to preserve evidence? by installing wiping software to target specific files for overwriting, by deleting thousands of files and folders as well as emails, and by failing to produce his home computer or portable thumb drive without adequate explanation; court allowed adverse inference that missing information would have supported plaintiff?s position ?on any issue to which that information was relevant?

Nature of Case: Breach of fiduciary duty by working simultaneously for direct competitor

Electronic Data Involved: Email, ESI

Sony BMG Music Entertainment v. Tenebaum, , 2009 WL 1651338 (D.R.I. June 10, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion to compel compliance with third party subpoena to allow access to the hard drive of the parents of defendant accused of copyright infringement in a music downloading case where parents were not parties to the action and where the computer was purchased after defendant moved out and thus plaintiffs failed to establish likelihood of the discovery of relevant information sufficient to warrant intrusion into parents? privacy

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive belonging to third party

Catagory:Case Summaries