Case Summaries – Page 271 – Electronic Discovery Law

Hale v. Coors Distrib. Co., 2009 WL 1600678 (D. Colo. June 5, 2009)

Dec 01 2009

Key Insight: Finding that plaintiff?s counsel?s understanding of defendant?s computer capabilities was ?neither thorough nor accurate? and that the lack of understanding resulted in an inability to adequately articulate the nature of the information sought, and finding that the lack of understanding was attributable to both parties, court considered six part test to determine whether discovery should be re-opened and then granted plaintiff?s request for additional discovery, limited by the court?s instructions

Electronic Data Involved: Database information

Cenveo Corp. v. S. Graphic Systs., 2009 WL 4042898 (D. Minn. Nov. 18, 2009)

Dec 01 2009

Key Insight: Where plaintiff produced ESI in .pdf format despite defendants? request for production in native format and later argued the term ?native format? was undefined, court found the term ?native format? was unambiguous and granted defendants? motion to compel the production (and re-production as was necessary) of ESI in native format

Electronic Data Involved: ESI

S.E.C. v. Bank of Amer. Corp., 2009 WL 3297493 (S.D.N.Y. Oct. 14, 2009)

Dec 01 2009

Key Insight: Court approved stipulated protective order allowing defendant to waive privilege and work product protections as to certain categories of documents without also waving ?such privilege and protection regarding other information that may be of interest in related private lawsuits?

Electronic Data Involved: ESI, hard copy

Schanfield v. Sojitz Corp. of Am., 2009 WL 577659 (S.D.N.Y. Mar. 6, 2009)

Dec 01 2009

Key Insight: Emails sent to co-workers to recruit them as co-plaintiffs not protected by the work product doctrine where plaintiff merely assumed co-workers would keep his communications secret but where court found that sending emails to employees of a corporation increased the likelihood that the material would reach others within the corporation and thus ruled that plaintiff forfeited the protection by using the work product ?in such a way that they may end up in the hands of [his]adversary;? where plaintiff sent emails to attorney family members and copied his non-lawyer sister or another relative, court ruled emails were protected by work product doctrine because material was prepared in anticipation of litigation and sharing with relatives ?did not significantly increase the likelihood that [defendant] would obtain private information?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

In re Search of Kindhearts for Charitable Humanitarian Dev., 594 F. Supp. 855 (N.D. Ohio 2009)

Dec 01 2009

Key Insight: Finding the restrictions of a protective order preventing defendant?s access to its own electronic materials seized pursuant to a government investigation too onerous and unconstitutional in light of defendants need for access to assist in its defense, and where defendants sought only copies of the material seized such that the originals would remain preserved, court granted defendants motion to vacate or amend the protective order to allow access to the materials but indicated willingness to allow government to justify certain restrictions based on a showing of substantial need

Nature of Case: Challenge to governmental freeze on charity’s assets and seizure of documents and other tangible items pursuant to executive order

Electronic Data Involved: Copies of seized ESI

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL 1212809 (E.D. Mich. May 1, 2009)

Dec 01 2009

Key Insight: Where forensic examiner revealed evidence of defendants? data deletion to plaintiffs while bound by stipulated order requiring results of the examination to be reported to defendants first, but where the court found the stipulated order was focused on the discovery of actual data rather than the lack of data and that the examiner was therefore not in violation of the order, court reserved ruling on examiner?s motion for attorney?s fees stating that while the examiner?s actions did not rise to the level of contempt, they were not free from taint and that such actions ?[gave] the Court pause about granting [the examiner?s] motion

Nature of Case: Dispute over sales commissions

Electronic Data Involved: Email, ESI

Innis Arden Golf Club v. Pitney Bowes, Inc., 257 F.R.D. 334 (D. Conn. 2009)

Dec 01 2009

Key Insight: Where consulting firm retained by plaintiff destroyed soil samples and related electronic data absent implementation of a litigation hold and where plaintiff was obligated to preserve such evidence in light of the possibility of litigation and its knowledge of the evidence?s relevance to that litigation, court attributed the consulting firm?s destruction of the samples and data to plaintiff based upon ?the close ties? between them and imposed a sanction precluding the admission of evidence based on the destroyed evidence; court found that defendant?s failure to conduct its own testing upon notice of impending remediation to the relevant property did not constitute a disclaimer of defendant?s interest in plaintiff?s pre-remediation soil samples, especially where remediation destroyed defendant?s ability to verify plaintiff?s testing results or conduct additional tests and where defendant was not aware that the existing data in plaintiff?s possession would be destroyed

Nature of Case: Cost recovery action

Electronic Data Involved: Soil samples and related electronic data

Panos v. Timco Engine Ctr., Inc., 2009 WL 1658416 (N.C. Ct. App. June 16, 2009)

Dec 01 2009

Key Insight: Appellate court affirmed trial court?s grant of summary judgment to plaintiff despite defendant?s accusations of spoliation and request for an adverse inference instruction where precedent established that the imposition of an adverse inference was permissive and not mandatory and that it was improper to base the grant or denial of summary judgment on evidence of spoliation, among other principles of law, and where defendant failed to identify any information destroyed by plaintiff that could support it?s claims and presented no independent evidence in support of its claims or alleged damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

Clarke v. J.P. Morgan Chase & Co., 2009 WL 1838995 (S.D.N.Y. June 22, 2009)

Dec 01 2009

Key Insight: Court upheld prior determination that email withheld as protected by attorney-client privilege should be produced where review of the email and affidavits of defendant?s employees showed that ?rather than having been asked to make a recommendation, in-house counsel had been charged with making a corporate decision as to whether certain jobs would be reclassified? and that the email informed the recipients of that decision and did not provide legal advice

Nature of Case: Class action alleging violations of Fair Labor Standards Act

Electronic Data Involved: Email

Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s objections to defendants? production in pdf format ?without merit? where plaintiff failed to specify the preferred format of production and where absent such specification ?pdf format?is presumptively a ?reasonably useable form?? and similarly dismissed plaintiff?s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff?s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Catagory:Case Summaries