Catagory:Case Summaries

1
Gutierrez-Bonilla v. Target Corp., 2009 WL 5062116 (E.D.N.Y. Dec. 16, 2009)
2
Silverstein v. Fed. Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009)
3
Snoznik v. Jeld-Wen, 259 F.R.D. 217 (W.D.N.C. 2009)
4
Canton v. Kmart Corp., 2009 WL 2058908 (V.I. July 13, 2009)
5
Robert v. Bd. of County Comm?rs of Brown Count, Kan., 2009 WL 1362530 (D. Kan. May 14, 2009)
6
Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)
7
Purdee v. Pilot Travel Centers, LLC, 2009 WL 430401 (S.D. Ga. Feb. 19, 2009)
8
Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)
9
Plew v. Ltd. Brands, Inc., 2009WL 1119414 (S.D.N.Y. Apr. 23, 2009)
10
Phillips v. Potter, 2009 WL 1362049 (W.D. Pa. May 14, 2009)

Gutierrez-Bonilla v. Target Corp., 2009 WL 5062116 (E.D.N.Y. Dec. 16, 2009)

Key Insight: Where plaintiff failed to establish the existence of the allegedly destroyed surveillance tape and where, even had the existence of such a tape been established, plaintiff failed to serve any request for preservation, court found plaintiff failed to establish a duty of preservation or that the allegedly spoliated evidence could have supported her case; court also found plaintiff failed to establish defendants? culpable state of mind where, in light of the lack of notice of preservation, the tape would have been recycled in the usual course of business and denied plaintiff?s motion for spoliation sanctions

Nature of Case: Slip and fall

Electronic Data Involved: Video surveillance tape

Silverstein v. Fed. Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009)

Key Insight: Defendants waived claims of privilege as to specific memorandum where, despite initially identifying the memorandum as privileged and placing it on the privilege log, defendants subsequently produced the memorandum and, upon realizing their mistake, failed to properly and timely re-assert the privilege or to take reasonable steps ?rectify the erroneous disclosure?; waiver was intentional where defendant failed for nearly 11 months to clarify the status of the document following its production despite a ready ability to do so and, where plaintiff was prejudiced as a result, court found ?fairness dictat[ed]? that plaintiff be allowed to proceed with discovery and that ?to the extent questions and documents ?concern the same subject matter? as that disclosed in the [memorandum], ?they ought in fairness to be considered together.??

Nature of Case: Constitutional claims

Electronic Data Involved: Privilege memorandum

Snoznik v. Jeld-Wen, 259 F.R.D. 217 (W.D.N.C. 2009)

Key Insight: Where testifying expert created and utilized electronic templates which he considered proprietary to create his report, court granted expert?s motion for a protective order and declined to compel production of the templates upon finding that the templates were not relevant to the actual issues at trial, that the defendant failed to show a need for the templates in light of expert?s production of underlying data used to create his report, that the expert properly sought a protective order to address the issues of confidentiality, and that the potential harm to the expert outweighed the potential (non-existent) harm to defendant

Nature of Case: Negligence, breach of implied warranty and express warranty and loss of consortium

Electronic Data Involved: Electronic templates used to create expert report

Canton v. Kmart Corp., 2009 WL 2058908 (V.I. July 13, 2009)

Key Insight: Court declined to order adverse inference for destruction/loss of surveillance video where plaintiff failed to establish that such a video existed and that defendant therefore had a duty to preserve it; court ordered adverse inference for defendant?s inability to produce photographs upon finding defendant did not take ?reasonable precautions? to preserve the evidence despite knowing that litigation was reasonably foreseeable

Robert v. Bd. of County Comm?rs of Brown Count, Kan., 2009 WL 1362530 (D. Kan. May 14, 2009)

Key Insight: Where defendants could not produce a requested email because of damage to author?s and recipient?s computers but where defendants undertook significant effort to search for the email, including a search by the county?s Information Technology Director and inquiry to the County?s email provider about the email?s availability, and where defendant offered to make the author?s computer available for inspection at plaintiff?s expense, court declined plaintiff?s request to ?shift the cost of an independent computer expert? to defendants and denied plaintiff?s motion to compel production of the email

Electronic Data Involved: Email

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Purdee v. Pilot Travel Centers, LLC, 2009 WL 430401 (S.D. Ga. Feb. 19, 2009)

Key Insight: Court denied plaintiff?s motion to compel, despite acknowledgement that requested information could ?slightly bolster plaintiff?s claims,? where the requests were either ?overly broad, unnecessarily cumulative, or plainly irrelevant? and where plaintiff did not indicate the information was necessary to survive the pending motion for summary judgment; court also denied motion for spoliation sanctions for destruction of certain data and surveillance video where plaintiff did not show resulting prejudice, but left open the possibility of an adverse inference instruction if defendant chose to reference the allegedly spoliated information at trial

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, surveillance tape

Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)

Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, database information, back up tapes

Plew v. Ltd. Brands, Inc., 2009WL 1119414 (S.D.N.Y. Apr. 23, 2009)

Key Insight: Denying plaintiff?s motion to compel, court rejected plaintiff?s argument that emails sent to and from a non-party could not be protected as work product where email exchanges occurred at the behest of counsel, because of the relevant litigation, and where there was no indication that the communications were likely to be revealed to plaintiff or any other adversary of the defendant

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Phillips v. Potter, 2009 WL 1362049 (W.D. Pa. May 14, 2009)

Key Insight: Where defendants failed to timely place a litigation hold and where electronic evidence was subsequently destroyed by an automatic deletion system, court declined to impose sanctions upon plaintiff?s failure to show that the evidence destroyed was relevant to her claims

Nature of Case: Violations of Title VII and breach of contract

Electronic Data Involved: ESI

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