Case Summaries – Page 270 – Electronic Discovery Law

Jneid v. Tripole Corp., 2009 WL 4882654 (Cal. Ct. App. Dec. 17, 2009)

Dec 01 2009

Key Insight: Appellate court reversed the judgment of the trial court and remanded the case for a new trial upon finding that defendant ?did not act intentionally? when if failed to produce certain documents before trial and that the evidentiary and issue sanctions imposed, including preclusion of use of certain documents, preclusion from introducing certain evidence, preclusion of certain arguments, and an adverse jury instruction, were ?more severe than necessary? where an order for defendant to pay all costs incurred by the completed trial (as suggested by defendant) was sufficient to rectify the prejudice to the plaintiff; on remand, court ordered trial court to determine the cost incurred by plaintiffs and cross-complainant in connection with trial and the costs incurred because of the late production of documents and for defendant to pay such costs

Nature of Case: Breach of employment contracts

Electronic Data Involved: Computer embedded information

Kandel v. Brother Int?l Corp., 2009 WL 5454888 (C.D. Cal. Dec. 15, 2009)

Dec 01 2009

Key Insight: Where defendants presented evidence that 110 privileged documents were produced despite extensive preventative measures, including key word searching and manual review, and where defense counsel took immediate action to identify all privileged materials that had been produced and to request plaintiff return, sequester, or destroy the documents pursuant to the parties? clawback agreement, court found that ?defendants ha[d] shown their production?was inadvertent within the meaning of?the protective order? and denied plaintiff?s motion for an order declaring 28 documents produced by defendants to be not privileged

Nature of Case: Class action

Electronic Data Involved: Privileged communications

United States v. Haymond, 2009 WL 2835398 (D. Okla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Where law requires denial of a request to copy or reproduce child pornography as long as the material is made ?reasonably available? to defendant and where defendant?s expert claimed an inability to locate the alleged illegal images on the forensic copy of the hard drive to which he was provided access, court indicated reticence to order the production of ?file data? to assist in the location of relevant images on the drive, but ordered defendant?s expert to instead coordinate access to the previously provided copy and for the government to assist his efforts by providing ?software keys? in there possession ? if effort failed, court indicated willingness to consider ordering production of the requested ?sector and file? information to assist defendant?s expert?s examination

Nature of Case: Child pornography

Electronic Data Involved: Images on hard drive

United States v. Hatfield, 2009 WL 3806300 (E.D.N.Y. Nov. 13, 2009)

Dec 01 2009

Key Insight: Addressing a number of attorney-client privilege and work product issues, the court considered whether documents stored on defendant?s company?s computer remained privileged and, noting the case-by-case nature of the assessment, considered five factors, including whether the company maintained a policy banning personal use, whether the company monitored employees? computer use or email, and how the company interpreted its own policy, and determined that defendant had not waived privilege as to documents stored on his own hard drive or that of a person with whom he maintained a joint defense agreement

Nature of Case: Criminal charges arising from alleged fraudulent schemes by CEO to defraud shareholders

Electronic Data Involved: Privileged emails stored on company computer

Patterson v. Goodyear Tire & Rubber Co., 2009 WL 1107740 (D. Kan. Apr. 23, 2009)

Dec 01 2009

Key Insight: Court indicated reluctance to intervene in discovery dispute regarding contents of back up tapes where parties failed to properly confer regarding electronic discovery but, where defendants offered to search back up tapes for relevant emails from two custodians on three specific dates, court ordered the search and prescribed search terms to employ; where the estimated labor to conduct the limited search of the back up tapes would not be excessive or unduly burdensome, court ordered defendant to bear cost

Electronic Data Involved: Back up tapes

Medcorp, Inc. v. Pinpoint Tech., Inc., 2009 WL 2194036 (D. Colo. July 14, 2009)

Dec 01 2009

Key Insight: Noting that a party seeking discovery from a non-party ?must satisfy a burden of proof heavier than the ordinary burden imposed by Rule 26 relating to discovery on any matter relevant to the subject matter involved in the pending action,? the special master quashed certain of plaintiff?s requests as overly broad and unduly burdensome including a request for forensic copies of a non-party?s employee work stations and server computers and a request for detailed information related to a the non-party?s technical environment, among others

Electronic Data Involved: Forensic copies

Gamby v. First Nat?l Bank of Omaha, 2009 WL 127782 (E.D. Mich. Jan. 20, 2009)

Dec 01 2009

Key Insight: Where defendant repeatedly violated its discovery obligations, including making misrepresentations of unavailability despite later revelations that documents were available from shared electronic source, and in light of explanations ?entirely unworthy of credence,? among other things, court struck answer of defendant and ordered judgment by default to plaintiff on issue of liability

Nature of Case: Claims arising from the Fair Credit Reporting Act

Electronic Data Involved: ESI

Lapin v. Goldman Sachs & Co., 2009 WL 222788 (S.D.N.Y. Jan. 23, 2009)

Dec 01 2009

Key Insight: Where defendants previously produced documents to regulators without any limitations as to subject matter, court ordered parties in present litigation to meet for at least four hours to discuss search terms intended to identify the relevant documents for production to plaintiff from amongst those already produced; where plaintiff sought documents beyond those previously produced to regulators, court found the request likely more burdensome than beneficial and ordered plaintiff to articulate need for additional documents and to consider compromises to avoid burden and expense

Nature of Case: Securities violations

Electronic Data Involved: ESI

Boyce & Isley, PLLC v. Cooper, 673 S.E.2d 694 (N.C. App. 2009)

Dec 01 2009

Key Insight: Where protective order allowed for inspection and identification of documents to be copied and where defendant?s attorney was allowed to inspect documents for such identification and also took notes, including typing portions of those documents into her laptop, appellate court found notes were protected as opinion work product because they would reveal which documents, among thousands, were considered significant to defendants and reversed order of trial court compelling their production

Nature of Case: Defamation

Electronic Data Involved: Attorney’s notes on laptop

Asarco, Inc. v. U.S. Envtl. Prot. Agency, 2009 WL 1138830 (D.D.C. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued it made a sufficient showing of bad faith to justify discovery regarding the adequacy of defendant?s search and the exemptions claimed but where plaintiff presented no genuine issue of material fact to which discovery would be devoted and where the remedy for a deficient search is to remand to the agency for a more adequate search, court denied plaintiffs? motion to take discovery; where defendant used only one search term — ?recontamination? ? court ordered ?one last search? using the terms: ?recontaminate,? ?recontaminat,? ?recontamination,? and ?contaminate again?

Nature of Case: FOIA

Electronic Data Involved: ESI

Catagory:Case Summaries