Case Summaries – Page 269 – Electronic Discovery Law

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

Oracle USA v. SAP AG, 264 F.R.D. 541 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Pursuant to the authority granted by Federal Rules of Civil Procedure 37 and 16, court granted defendants? motion to preclude plaintiffs? presentation of evidence of certain damages where plaintiffs failed to timely inform defendants of their vastly expanded damages claims (despite their ability to do so) and failed to timely supplement their initial disclosures accordingly, and where such expansion would prejudice the defendants in light of the volume of information to be analyzed and the attendant cost; court?s analysis relied in part upon the extensive discovery that had already been undertaken

Nature of Case: Copyright infringement

Electronic Data Involved: Evidence of expanded damages claims

In re Nuvaring Prod. Liab. Litig., 2009 WL 2486330 (E.D. Mo. Aug. 11, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for cost sharing for their review and production of electronically stored information where the parties had implicitly agreed to be responsible for their own expenses, where plaintiffs already took steps to eliminate the cost to defendants of repeatedly producing documents, and where defendants failed to establish that plaintiffs? request had caused undue burden or expense or that they would in future; court instructed defendants to file motions for protective orders specifically identifying the requests creating the burden and expense to allow the court to address the objections

Nature of Case: Products liability

Electronic Data Involved: ESI

Donnelly v. NCO Fin. Sys., Inc., 2009 WL 5551377 (N.D. Ill. Dec. 16, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel defendant to produce a list of all persons it called on cellular telephones within particular area codes, despite defendant?s claim that such production would be unduly burdensome and minimally probative and that it would need to create special programs to extract the information which would take ?several hundred hours,? where court determined plaintiff?s need for the information outweighed the burden in producing it

Nature of Case: Class action

Electronic Data Involved: ESI

People v. Buckner, 228 P.3d 245 (Colo. App. 2009)

Dec 01 2009

Key Insight: Court held admission of defendant?s cell phone was not error and did not constitute impermissible hearsay where the prosecution sought to show that an undercover officer?s number showed up on defendant?s phone, where the phone was authenticated by the officer?s testimony, and where the telephone was not a ?person? or ?declarant? making ?a communicative ?statement? within the meaning of the relevant hearsay rule; court rejected argument that admission of phone was error because it contained other phone numbers, texts, etc. where defendant failed to show that he was prejudiced and failed to identify any particular message, etc. that the jury would have obtained from the phone

Nature of Case: Criminal

Electronic Data Involved: Cellular phone

East Coast Brokers and Packers, Inc. v. Seminis Vegetable Seeds, Inc., 2009 WL 361281 (M.D. Fla. Feb. 9, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion for sanctions arising from plaintiff?s alleged spoliation of ?pack data? (related to the number of tomatoes picked and packaged) where the alleged spoliation consisted of plaintiff?s entry of additional information to the ?pack data? following commencement of litigation but where the court found that no spoliation had occurred because the source of the newly added information was preserved, because the data was ?added as opposed to changed,? and because defendant had the right of cross examination at trial

Electronic Data Involved: ESI

Flying J. Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1835000 (D. Utah June 25, 2009)

Dec 01 2009

Key Insight: Where plaintiffs? request for production sought both data and summaries of data, court granted plaintiffs? motion to compel production of the requested data but found defendants were not required to compile or summarize information in their response (?[A] request for production cannot require a responding party to compile and summarize.?); court rejected defendant?s argument that production of the requested data would be unreasonably burdensome without reciprocal productions from plaintiff finding ?[a] party is not excused from making disclosures because ?another party has not made it disclosures.??

Electronic Data Involved: Transaction data from defendant’s database(s)

Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 WL 4725297 (E.D. Mo. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where a party to the litigation forwarded an email from his attorney to a third party, the court ruled that the attorney-client privilege had been waived because there was no shared legal interest between the litigant and the third party and thus the common interest doctrine did not apply but held that the protection provided by the work product doctrine had not been waived where the email was forwarded to ?a nonadversary third party? and where there was no basis for finding it likely that the third party would not keep the email confidential

Electronic Data Involved: Privileged email

Knights Armament Co. v. Optical Sys. Tech., Inc., 2009 WL 331608 (M.D. Fla. Feb. 10, 2009)

Dec 01 2009

Key Insight: Finding that defendant?s delay in producing a privilege log and the insufficiency of the entries therein supported a finding of waiver, court nonetheless declined to impose the ?extreme sanction? of waiver as to the actual privileged communications but held that defendants had failed to establish that the attached ?preexisting business records? were privileged or protected and ordered the them produced

Nature of Case: Trademark infringement, false advertising, unfair competition, and other claims

Electronic Data Involved: Emails

Catagory:Case Summaries