Case Summaries – Page 269 – Electronic Discovery Law

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

Fells v. Virginia Dept. of Transp., 605 F. Supp. 2d 740 (E.D. Va. Mar. 25, 2009)

Dec 01 2009

Key Insight: Identifying a difference between costs expended for converting a paper document into an electronic one and creating electronically searchable documents, the court denied defendant?s request for recovery of costs related to ?electronic records initial processing, Metadata extraction, [and] file conversion?

Nature of Case: Employment litigation

Grand River Enters. Six Nations, Ltd. v. King, 2009 WL 330213 (S.D.N.Y. Feb. 9, 2009)

Dec 01 2009

Key Insight: District Court affirmed denial of plaintiff?s motion for an order compelling the production of ?econometric data? previously produced to the FTC, and the computer programs used to calculate it, because the data was of limited relevance, because the risk created by disclosure of the sensitive information outweighed the limited benefit to plaintiffs, and because the calculations for which the data was necessary had already been performed in another case and thus were available from an alternative source

Electronic Data Involved: Econometric data and computer programs

Dahl v. Bain Capital Partners, LLC 2009 WL 1748526 (D. Mass. June 22, 2009)

Dec 01 2009

Key Insight: Briefly but comprehensively addressing a number of electronic discovery issues, court declined to shift discovery costs to the requesting party, declined to order defendants to bear the cost of changing the format of their responsive documents for production (unless such conversion was necessary to render the documents ?usable?), declined to order the production of all metadata and instead limited production to 12 fields of metadata proposed by plaintiffs, and ordered the production of spreadsheets and privilege logs in native format

Electronic Data Involved: ESI, metadata

S.E.C. v. Leslie, 2009 WL 4724242 (N.D. Cal. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where defendant produced responsive documents after the close of discovery and explained that he believed the documents had been previously produced by his prior employer based on his misunderstanding that all documents saved to his personal computer were also saved on the employer?s network (and thus collected from that source), the court reasoned that ?a trial on the merits of the case outweighs and prejudice to the plaintiff?, that the plaintiff had had more than a month to complete the review of the newly produced documents, and that defendant had fulfilled his obligation to supplement discovery and denied defendant?s motion to exclude plaintiff?s use of the documents; court allowed defendant to depose plaintiff for an additional two hours

Electronic Data Involved: Late produced ESI

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

In re Apotex, Inc., 2009 WL 618243 (S.D.N.Y. Mar. 9, 2009)

Dec 01 2009

Key Insight: Concluding that discovery requests were unduly intrusive and burdensome, court vacated grant of permission to obtain discovery for use in Canadian litigation and quashed the resulting subpoena because responding to the subpoena would require substantial effort on the part of a non-party because of the passage of time, because relevant data was not readily available from a database, as anticipated, due to the organizational structure of the database, and because a privilege review requiring subs6tantial resources would likely need to be undertaken

Nature of Case: Canadian litigation

Electronic Data Involved: ESI from database

Hearst v. State, 2009 WL 1037730 (N.Y. Sup. Ct. Apr. 16, 2009)

Dec 01 2009

Key Insight: Where government entities were not required to prepare any record not already possessed or maintained by such an entity in response to a FOIL request and where state agency argued a response to petitioner?s request would require such preparation to protect government employee?s social security numbers, court agreed with agency and denied petitioners? requests as stated but ordered production of data extracted using petitioners? suggested method, despite acknowledgement of inferiority of resulting information, where such extraction would substantially accomplish petitioners? objectives but maintain state employees? privacy protection

Nature of Case: FOIL request

Electronic Data Involved: ESI, metadata, databases

Dilley v. Metro. Life Ins., Co., 256 F.R.D. 643 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Upon finding that because of the ?relative inaccessibility of the information sought?responding to the request would be overly burdensome? where defendant was unable to query its database for the information requested and upon finding that the information sought would not satisfy plaintiff?s purpose without additional information, court found that defendant had established that ?the significance of the discovery to the issues in the present case is substantially outweighed by the burden? and granted defendant?s motion for a protective order

Nature of Case: Wrongful denial of claim for disability benefits

Electronic Data Involved: Database contents

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