Case Summaries – Page 278 – Electronic Discovery Law

In Re Nat?l Century Fin. Enters., Inc. Fin. Inv. Litig., 2009 WL 2169174 (S.D. Ohio July 16, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part a motion for sanctions based on multiple plaintiffs? alleged delay and spoliation, including a failure to preserve relevant evidence, and ordered sanctions including excluding certain plaintiffs from affirmatively using late produced documents and allowing the moving party to proffer evidence at trial that it believed would give rise to an adverse inference and entitle it to an adverse jury instruction

Nature of Case: Consolidated actions arising from the collapse of National Century Financial Enterprises, Inc.

Electronic Data Involved: ESI

Moore v. Napolitano, 2009 WL 2450280 (Aug. 7, 2009 D.D.C.)

Dec 01 2009

Key Insight: Where defendant objected to magistrate judge?s order ?to do what the [Rules] already require in no uncertain terms, and that is to search for the responsive documents and produce them? (where defendant had unilaterally decided not to look for ESI), court rejected defendant?s objections, including her argument of undue burden, where plaintiffs? use of broad language did not automatically render them overbroad and where declarations in support of the alleged burden were ?largely conclusory?, where magistrate?s order (and Federal Rules) did not require futile searching where it was clear no documents would be found (after good faith inquiry), and where defendant offered only speculation that her search would result in ?needless duplication?

Nature of Case: Employment discrimination action

Electronic Data Involved: ESI

In re: Application of Operadora DB Mexico, S.A. De C.V., 2009 2435750 (M.D. Fla. May 28, 2009)

Dec 01 2009

Key Insight: Where non-party to international arbitration sought to quash subpoena on grounds including the undue burden of searching for and producing electronic discovery, magistrate judge recommended that electronic data previously produced by non-party in prior litigation should be produced but that the parties should meet and confer regarding the production of additional data and should specifically address including: the medium on which the data was stored, the volume of data, the practicability of searching the data, and the likely costs associated with production

Nature of Case: International arbitration over franchise rights in Mexico

Electronic Data Involved: ESI

Rhoades v. Young Women?s Christian Assoc. of Greater Pittsburgh, 2009 WL 3319820 (W.D. Pa. Oct. 14, 2009)

Dec 01 2009

Key Insight: Where defendant inadvertently produced 4 privileged documents (among over 1600 total) as the result of an administrative error following a careful review of the documents for production and where defendants sought the return of those document only five days later, court found privilege had not been waived; court found request for ?versions of all emails sent by or to Plaintiff? and several other persons unduly burdensome where the request covered more than seven years of email and did not specify the topics of the information sought

Nature of Case: Violations of Equal Pay Act and Fair Labor Standards Act

Electronic Data Involved: ESI, Privileged ESI

Bennett v. Martin, 2009 WL 4048111 (Ohio Ct. App. Nov. 24, 2009)

Dec 01 2009

Key Insight: Where defendants failed to adequately respond to discovery in defiance of two court orders, trial court did not abuse its discretion in ordering forensic imaging of certain of defendants? hard drives to ensure that all responsive documents had been produced but erred in ?not providing adequate protections to safeguard the confidentiality? of defendants? information; case was remanded to the trial court for consideration of the protocol described by the appellate court, i.e., the retention of an independent expert to retrieve potentially responsive files to be reviewed by the producing party before production to ensure protection of confidentiality and privilege

Nature of Case: Age discrimination

Electronic Data Involved: ESI, hard drives

Ergo Licensing, LLC v. Carefusion 303, Inc., 263 F.R.D. 40 (D. Me. 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege as to 31 pages of inadvertently produced documents (out of 540) where plaintiff took reasonable precautions to prevent the disclosure, including conducting a multi-part privilege review, and where plaintiff acted promptly to rectify the inadvertent production as soon as it became aware of it; in so holding, court rejected defendant?s assertions that plaintiff?s failure to ?independently recognize? the error in production had bearing on the issue and that fairness weighed in favor of waiver where the documents directly supported its defense

Nature of Case: Patent ligitation

Electronic Data Involved: Privileged email, ESI

U.S. E.E.O.C. v. Olson Staffing Servs., 657 F. Supp. 2d 1029 (W.D. Wis. Sept. 28, 2009)

Dec 01 2009

Key Insight: Where authentication ?is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims?, court rejected argument that only the author could authenticate and found email was properly authenticated by the testimony of the person who ?personally retrieved the email from [the relevant] computer?

Nature of Case: Violations of Americans with Disabilities Act

Electronic Data Involved: Email

CBT Flint Partners, LLC v. Return Path, Inc., 2009 WL 5159761 (N.D. Ga. Dec. 30, 2009)

Dec 01 2009

Key Insight: Recognizing a ?division of opinion? as to whether e-discovery vendor costs are recoverable, court called the ?highly technical? services provided by the e-discovery vendor the ?21st century equivalent of making copies,? noted that ?taxation of these costs will encourage litigants to exercise restraint in burdening the opposing party with the huge cost of unlimited demand for electronic discovery? and overruled and denied plaintiff?s objection to taxation as costs of the e-discovery consultant?s fees; Summary judgment reversed and costs vacated in CBT Flint Partners, LLC v. Return Path, Inc., Nos. 1010-1201, 2010-1203, 2011 WL 3487023 (Fed. Cir. Aug. 10, 2011)

Nature of Case: Patent Infringement

Electronic Data Involved: ESI

Southeastern Mech. Servs., Inc. v. Brody, 2008 WL 4613046 (M.D. Fla. July 24, 2009)

Dec 01 2009

Key Insight: Court granted motion for preliminary injunction, including injunction against destruction of evidence related to plaintiff’s claims, including computers

Nature of Case: Misappropriation of trade secrets, tortious interference and related claims

Electronic Data Involved: ESI

Golden v. State, 2009 WL 3153262 (Ark. App. Ct. Sept. 30, 2009)

Dec 01 2009

Key Insight: Despite testimony that the methods utilized to copy surveillance tape could reduce the image?s fine detail and the State?s failure to comply with a court order to produce the original of the surveillance tape because it had been lost, the trial court did not err in failing to grant defendant a new trial where a duplicate tape is admissible to the same extent as the original and where there was no evidence of bad faith in the loss of the tape; in so deciding, court also cited testimony that defendant did not objet

Nature of Case: Criminal

Electronic Data Involved: Copy of original surveillance tape

Catagory:Case Summaries