Case Summaries – Page 268 – Electronic Discovery Law

Crews v. Fishburne, 2009 WL 946876 (Cal. Ct. App. Apr. 9, 2009) (Unpublished)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in ordering terminating sanctions where plaintiff (and plaintiff?s counsel) delayed production of discovery, made a ?meaningless production? of an unusable CD upon defendant?s motion to compel, redacted documents without notification to defendants and refused to produce court ordered privilege log, and refused to produce unredacted documents despite a court order

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Johnson v. City of Pineville, 9 So.3d 313 (La. Ct. App. Apr. 8, 2009)

Dec 01 2009

Key Insight: Reversing the judgment of the trial court, appellate court ordered production of public records in electronic format upon finding such production ?safe and reasonable? where there was ?no merit? in the government?s contentions that such production created the risk of alteration of records outside of the custodian?s care or that electronic production would place an overly burdensome requirement to retain original copies

Nature of Case: Public records request

Electronic Data Involved: Emails

Chevron USA, Inc. v. M & M Petroleum Servs., Inc., 2009 WL 2431926 (C.D. Cal. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where court found defendant had perjured himself, including making untrue statements about the existence of relevant evidence, had willfully disobeyed the court?s order to produce ?substantial documents,? and had knowingly and intentionally either destroyed or ordered destroyed relevant electronically stored information, court ordered adverse inference and monetary sanctions

Nature of Case: Lawsuit arising from defendant’s breach of contract and defendant’s undereporting of revenue and underpayment of taxes

Electronic Data Involved: ESI, hard copy

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.

Nature of Case: Failure to accomodate

Electronic Data Involved: Email

Tango Transp., LLC v. Transp. Int. Pool, Inc., 2009 WL 3254882 (W.D. La. Oct. 8, 2009)

Dec 01 2009

Key Insight: Where defendant established plaintiff?s breach of its duty to preserve emails by failing to timely issue litigation hold notices to all ?key players? but failed to establish defendants? bad faith or the relevance of the lost messages, court declined to impose adverse inference sanctions but ordered monetary sanctions, including defendant?s attorneys fees associated with the motion

Nature of Case: Contract dispute

Electronic Data Involved: Emails, other ESI

Assoc. Press v. Canterbury, 688 S.E.2d 317 (W. Va. 2009)

Dec 01 2009

Key Insight: Finding that ?a personal email communication made by a public official or public employee, which does not related to the conduct of the public?s business, is not a public record subject to disclosure under FOIA,? West Virginia?s Supreme Court of Appeals reversed in part a lower court ruling compelling the production of five personal emails pursuant to West Virginia?s Freedom of Information Act (FOIA)

Nature of Case: Freedom of Information Request (FOIA)

Electronic Data Involved: Emails

Comrie v. Ipsco, 2009 WL 4403364 (N.D. Ill. Nov. 30, 2009)

Dec 01 2009

Key Insight: Where defendants claimed a privileged email was inadvertently produced and thus protected from waiver but failed to support their assertion with facts, court ruled defendants failed to meet their burden of proving that the disclosure was inadvertent or that they took reasonable steps to prevent such disclosure and that privilege was therefore waived; court also found that the email fell within the fiduciary exception to privilege

Nature of Case: Claims brought pursuant to Employee Retirement Income Security Act (ERISA)

Electronic Data Involved: Privileged email

David v. Signal Int. LLC, 2009 WL 5215326 (E.D. La. Dec. 28, 2009)

Dec 01 2009

Key Insight: Where pro se defendant failed to assert the attorney client privilege when such information was sought and ?selectively disclosed? such information despite warnings from his former counsel, court found defendant had waived the attorney-client privilege as to communications with counsel; addressing defendant?s argument that his disclosures were ?mistakes? (and thus inadvertently produced) court noted defendant?s failure to seek the return of the confidential communications, his lack of effort to ?rectify or withdraw? any of his deposition disclosures, and that the disclosures occurred following warning from counsel and therefore found that ?any argument?that he inadvertently disclosed confidential communications?lacks merit.?

Nature of Case: Class action

Electronic Data Involved: Privileged communications

In re Kessler, 2009 WL 2603104 (E.D.N.Y. Mar. 27, 2009)

Dec 01 2009

Key Insight: In a case arising from the fire of a boat while in the marina the district court rejected the magistrate?s recommendation in favor of spoliation sanctions for the marina?s failure to preserve surveillance video because the court found that the owner of the boat did not meet the burden of establishing the marina?s culpable destruction of relevant tape in violation of a duty to preserve where the footage ?self destructed approximately twenty-seven hours after it was recorded? when it was automatically recorded over in the regular course of the system?s activities; marina was ordered to bear the cost of conducting forensic examination of its hard drive to determine if fire footage could be retrieved

Nature of Case: Claims resulting from a vessel destroyed by fire while in the marina

Electronic Data Involved: Video surveillance

Whatman, Inc. v. Davin, 2009 WL 3698390 (D.S.C. Nov. 3, 2009)

Dec 01 2009

Key Insight: Court granted Motion to Quash where the court determined that the subpoena was unduly burdensome on the non-party and that ?the discovery sought can be obtained from more reasonable discovery methods, namely pursuit of full responses by the defendants to interrogatories and requests for production along with additional or supplemental examination of the defendants? electronically stored documents?

Nature of Case: Misappropriation of trade secrets, unfair competition, etc.

Electronic Data Involved: ESI

Catagory:Case Summaries