Case Summaries – Page 273 – Electronic Discovery Law

EEOC v. Aaron Bros., Inc., 620 F.Supp.2d 1102 (C.D. Cal. 2009)

Dec 01 2009

Key Insight: Court granted motion to modify subpoena and rejected defendants arguments it was overly broad and unduly burdensome where the court found the evidence sought to be relevant and material and where defendants failed to present evidence of the actual costs of production, the size of their operations and there capacity to handle those costs, or that such costs would be unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, harcopy

Chirdo v. Mineral Techs., Inc., 2009 WL 2195135 (E.D. Pa. July 23, 2009)

Dec 01 2009

Key Insight: Court denied motion for spoliation sanctions for alleged destruction of emails where the emails were destroyed pursuant to defendant?s document retention policy five months prior to defendant?s receipt of plaintiff?s EEOC charge at a time when there was no duty to preserve and where plaintiff only vaguely alleged the contents of the documents and their relevance; human resources representative?s comment that plaintiff?s review was ?evidence in support of any future litigation? did not trigger duty to preserve because ?that is the primary purpose for the retention of human resource records? and because she did not know that the time of the statement that plaintiff would be terminated, let alone file a lawsuit

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Infor Global Solutions (MI), Inc. v. St. Paul Fire & Marine Ins. Co., 2009 WL 2390174 (N.D. Cal. Aug. 3, 2009)

Dec 01 2009

Key Insight: Where out of ?an apparent concern about the court imposed deadline,? plaintiff produced electronic documents without review because of technical difficulties opening certain files and emails and where plaintiff informed no one of the difficulties, sought no extension from the court for production, and did not qualify the production with any ?clawback? notice, court found that plaintiff had waived privilege and granted defendant?s motion to compel

Nature of Case: Insurance

Electronic Data Involved: Privileged ESI

Dilts v. Maxim Crane Works, L.P., 2009 WL 3161362 (E.D. Ky. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where defendants failed to record data stored on crane?s computer following death of two construction workers, but where plaintiffs offered no evidence to support their allegations that the data was manually destroyed or that the failure to photograph the display was unreasonable and where defendants presented evidence that data could not be downloaded from the crane?s computer and plaintiff failed to request the information downloaded in the first place, court declined plaintiffs motion for spoliation sanctions

Nature of Case: Negligence resulting in death

Electronic Data Involved: ESI stored on crane’s internal computer

MRT, Inc. v. Vounckx, 299 S.W.3d 500 (Tex. Ct. App. 2009)

Dec 01 2009

Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve

Nature of Case: Misrepresentations and fraudulent inducement

Electronic Data Involved: Backup tapes

Loyal v. State, 2009 WL 2884147 (Ga. Ct. App. Sept. 10, 2009)

Dec 01 2009

Key Insight: Vice President?s testimony that electronic security log was kept in regular course of business and that data was entered into the log contemporaneously with the events themselves was sufficient to establish a foundation for the admission of the log as a business record where the exception does not require that the foundation be laid by the custodian of records, but only that ?the record offered to prove a transaction be made in the regular course of business and that it is the regular course of business to make the record at the time of the act or transaction?; a witness?s lack of personal knowledge regarding how the records were created ?merely affects the weight given to the evidence?

Nature of Case: Criminal/theft

Electronic Data Involved: Security log indicating when warehouse was locked and unlocked, and the PIN used to access the facility

Consolidated Rail Corp. v. Grand Trunk W. R.R. Co., 2009 WL 5151745 (E.D. Mich. Dec. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s production of 1200 pages ?as they were kept in the normal course of business? was sufficient pursuant to Rule 34 where plaintiff ?identified the document custodians and the range of Bates number for each custodian?s set of documents, along with the date associated with document creation,? where documents were produced in the order they were found on each hard drive, and where email attachments were produced directly following the corresponding email; plaintiff?s failure to arrange emails chronologically was not fatal to plaintiff?s production

Nature of Case: Declaratory judgment action, breach of contract

Electronic Data Involved: ESI, email

Kellogg Brown & Root Int., Inc. v. Altanmia Commercial Mktg. Co., 2009 WL 1457632 (S.D. Tex. May 26, 2009)

Dec 01 2009

Key Insight: Where defendant objected to plaintiff?s bill of costs including costs for data extraction and storage by a third party vendor, court stated that the ?steps that KBR had the third-party vendor perform do not appear to be electronic equivalents of exemplification and copying? , held that the costs were not within the ??exemplification and copying? category of ? 1920? and thus upheld defendant?s objection to those costs

Nature of Case: Declaratory judgment related to a series of contracts for fuled transport overseas

Electronic Data Involved: Extraction and storage costs of ESI

In re Interest of B.H., 2009 WL 2195930 (N.J. Super. Ct. App. Div. July 24, 2009)

Dec 01 2009

Key Insight: Court found edited copy of surveillance tape was properly authenticated and admitted where, pursuant to the N.J. Best Evidence Rule, duplicates are admissible to the same extent as the original unless a question is raised as to the authenticity of the original, which defendant did not do, and where the testimony of the patrolman who viewed the original surveillance tape established that the copy was an accurate duplication of the pertinent parts of the original tape, and where there was no showing of unfairness in the production of the edited tape rather than the original

Nature of Case: Criminal / Robbery

Electronic Data Involved: Copy of surveillance tape

Continental Group, Inc. v. KW Prop. Mgmt., 2009 WL 425945 (S.D. Fla. Feb. 20, 2009)

Dec 01 2009

Key Insight: Where parties failed to establish filtering protocol to segregate privileged materials from portable devices because of a disagreement as to the meaning of the court?s prior order, court ordered production of images of defendant?s portable devices to plaintiff prior to performing a privilege review but held that such production would not result in waiver and indicated its belief that no prejudice to defendant?s would result, despite acknowledgement that plaintiff would have ?a few days to view the images which may contain privileged material? prior to defendants identification of privileged material

Electronic Data Involved: Privileged ESI on portable devices

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