Case Summaries – Page 260 – Electronic Discovery Law

In re Tamer, 877 N.Y.S.2d 874 (Surr. Ct. N.Y. 2009)

Dec 01 2009

Key Insight: Finding electronic production sufficient to satisfy the relevant statute requiring production of documents as kept in the regular course of business or organized to correspond to the category of the request, court granted objectants motion to compel trustees to accept production in electronic form and not hard copy and ordered such production to be accompanied by an index identifying the document produced in response to each demand and the electronic file where the document was stored

Nature of Case: Contested accounting proceeding

Electronic Data Involved: Production of documents in electronic form

Eastview Healthcare, LLC v. Synertx, Inc., 674 S.E. 2d 641 (Ga. Ct. App. 2009)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in granting plaintiff?s motion to strike defendants? affidavit and attached emails where emails were not properly authenticated; appellate court found defendants? reliance on Willis v. Hill, 116 Ga. App. 848 (1967) to appeal the trial court?s ruling was misplaced where Willis held that ?”[u]pon production of copies pursuant to a notice to produce, the producing party admits the correctness of the copies and further proof is unnecessary in order for the moving party[, i.e., the requesting party,] to introduce them into evidence? but where in the present case the emails sought to be admitted were produced by defendants, i.e. the party seeking their admission, and thus Willis was inapplicable

Nature of Case: Breach of contract, collect on open account

Electronic Data Involved: Emails

Plunk v. Village of Elwood, Ill., 2009 WL 1444436 (N.D. Ill. May 20, 2009)

Dec 01 2009

Key Insight: Where audio tape of council meeting was lost despite duty to preserve and where defendants failed to rebut plaintiffs? allegation that the tape was erased or replaced beyond an unsupported assertion of inadvertence, court precluded defendants from relying on occurrences at the meeting and ordered an adverse inferences to the jury; where evidence indicated computers subject to preservation were defragged repeatedly, and perhaps erased intentionally, and where defendants failed to preserve 6 hard drives despite agreeing do so, court ordered jury to be informed of failure to preserve, that defendants were precluded from arguing that the absence of evidence supported their contentions, and that the jury would be given permission to draw an adverse inference

Nature of Case: Civil rights action

Electronic Data Involved: Audio tape, hard drives

Kravetz v. Paul Rever Life Ins. Co., 2009 WL 1639736 (D. Ariz. June 11, 2009) (Not for Publication)

Dec 01 2009

Key Insight: For purposes of determining the number of hours worked by plaintiff following his injury, court granted motion to compel the production of several hard drives and storage devices used by plaintiff to conduct business but limited the inspection to relevant metadata and forbade inspection of the substance of any documents

Nature of Case: Disability claim

Electronic Data Involved: Metadata on hard drives

Newman v. Borders, 257 F.R.D. 1 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where defendant?s 30(b)(6) deponent did not have sufficient knowledge of defendant?s document and email retention policies or how searches of its electronically stored information were conducted and where the parties could not reach agreement regarding the proper disclosure or production of such information, court denied plaintiff?s request to take additional depositions and ordered defendant to submit an affidavit responding to nine questions crafted by the court aimed at disclosing the disputed information

Nature of Case: Race discrimination

Electronic Data Involved: Information about email and document retention and seach methodology

Brodsky v. Humana, Inc., 2009 WL 1956450 (N.D. Ill. July 8, 2009)

Dec 01 2009

Key Insight: Addressing whether certain of plaintiff?s requests were unduly burdensome relative to the likely benefit of production, court granted in part and denied in party plaintiff?s motion to compel upon determining that certain requests were unduly burdensome in light of the estimated time and effort to respond

Nature of Case: Violations of Telephone Consumer Protection Act

Electronic Data Involved: ESI, mirror image drives

State Farm Ins. Co. v. Policherla, 2009 WL 2170183 (E.D. Mich. July 20, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion to quash third party subpoena upon finding defendants? could claim no viable privacy interest and thus lacked standing and where plaintiff?s showing of relevance outweighed defendants? claims of harm; court granted plaintiff?s motion to compel claim related information, despite acknowledgement of defendants? burden, where plaintiff established the relevance of such data, but ordered a sampling of the requested data while reserving plaintiff?s prerogative to make a showing that additional disclosure would be productive

Nature of Case: RICO

Electronic Data Involved: ESI

New Salida Ditch Co, Inc. v. United Fire and Cas. Ins. Co., 2009 WL 2399933 (D. Colo. July 31, 2009)

Dec 01 2009

Key Insight: Where defendant was successful in ?ascertaining with clarity whether it had any information responsive to the discovery dispute? only after months of delay and claims that it was unable to perform the requisite searches in its computer system, court ordered defendant to pay plaintiff?s fees and costs upon finding that defendant failed to show its behavior was ?substantially justified? or that sanctions would be ?unjust? and where plaintiff was ?the victor in the discovery dispute? and suffered prejudice by defendant?s delay, including ?unnecessary expenditure of time and expense?

Nature of Case: Insurance coverage

Electronic Data Involved: ESI

In re Netbank Sec. Litig., 2009 WL 2461036 (N.D.Ga. Aug. 7, 2009)

Dec 01 2009

Key Insight: Court ordered production of ESI in native format, despite defendants? objections that such production was not required by the federal rules, allowed for the alteration of documents, and prevented bates labeling, among other reasons, where defendants? problems were deemed ?hypothetical? and where plaintiff ?definitively stated? that the provision of TIFF documents both made the review more expensive and served to conceal metadata

Nature of Case: Class action securities litigation

Electronic Data Involved: ESI

Commonwealth v. Ruddock, 2009 WL 3400927 (Mass. Sup. Ct. Oct. 2009)

Dec 01 2009

Key Insight: Recognizing that the defendant would be ?severely handicapped? absent expert consultation and finding that requiring defendant?s expert to examine the evidence while in the commonwealth?s custody would burden defendant?s rights to effective assistance of counsel and create the risk that his work product would be accessible to the government, court ordered mirror image of defendant?s hard drive to be produced, but entered a strict protective order limiting its use and dissemination

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

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