Case Summaries – Page 281 – Electronic Discovery Law

In re Zurn Plex Plumbing Prods. Liab. Litig., 2009 WL 1606653 (D. Minn. June 5, 2009)

Dec 01 2009

Key Insight: Where defendants objected to plaintiffs’ motion to compel arguing the requested search of emails and various computer drives would be unduly burdensome, court dismissed attorney?s affidavit in support of such objections as ?not compelling evidence? where attorney was not ?an expert on document search and retrieval? but, ?in an effort to control costs,? limited defendants? search to particular locations and ordered the use of 14 terms as supplied by the court or agreed upon by the parties; court invited defendants to renew their objections if the search nonetheless proved overly burdensome by submitting evidence, including evidence from ?computer experts,? in support of those objections

Nature of Case: Claims that defendants’ choice of plumbing fittings caused damage to plaintiffs’ property

Electronic Data Involved: ESI

Midkiff v. Commonwealth, 2009 WL 1851009 (Va. Ct. App. June 30, 2009)

Dec 01 2009

Key Insight: Trial court did not abuse its discretion in admitting reproductions of images found on appellant?s computer at trial where the Commonwealth presented testimony from the forensic scientist and investigator responsible for making the reproductions explaining the process of reproducing the images and confirming that the reproductions accurately represented the images on defendant?s hard drive, and where defendant admitted membership in relevant websites and storing child pornography on his computer; in Virginia, the best evidence rule is limited to writings and was not applicable in this case

Nature of Case: Possession of child pornography

Electronic Data Involved: Reproductions of images on defendant’s hard drive

Wolfe v. Glasgow, 2009 WL 1956687 (M.D. Fla. July 7, 2009)

Dec 01 2009

Key Insight: Court granted Motion to Quash Subpoena Duces Tecum to Non-party upon finding the subpoena ?overly broad on its face? where the subpoena failed to describe the documents sought with any particularity and would have essentially required the large third-party corporation ?to search its entire database of records to produce every document which refers or relates in any way to the named defendants and to [a former employee]?

Nature of Case: Discrimination in violation of Fair Housing Act

Electronic Data Involved: ESI

Stratienko v. Chatanooga-Hamilton County Hosp. Auth., 2009 WL 2168717 (E.D. Tenn. July 16, 2009)

Dec 01 2009

Key Insight: Court denied defendants? objections to magistrate?s finding that sanctions were warranted (including a possible adverse inference) where defendants delayed production of relevant notes for four years and where, despite a duty to preserve based upon specific requests for the hard drive at issue, defendants re-imaged the drive rendering the information thereon unavailable, and where the information stored on defendants? network was also unavailable

Nature of Case: Action arising from physical altercation resulting in plaintiff’s suspension from work

Electronic Data Involved: ESI, hard drive

Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009)

Dec 01 2009

Key Insight: Where plaintiff made a preliminary showing of spoliation, including testimonial evidence from defendant?s 30(b)(6) deponent that no one talked to her about creating a litigation hold policy and deposition testimony from defendant?s witness that he didn?t save anything, court ordered the production of defendants litigation hold letters (with information unrelated to the litigation hold redacted); court reasoned that ?if defendants deleted emails that should have been preserved, this was a relevant factor for the court to consider when it decided whether it was prohibitively burdensome or expensive for the Defendants to retrieve its archived emails.?

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Litigation hold letter

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Consol. Edison CO. of NY, Inc. & Subsidiaries v. U.S., 2009 WL 3418533 (Fed. Cl. Oct. 21, 2009)

Dec 01 2009

Key Insight: In very long and complicated tax litigation, court found no spoliation absent a duty to preserve where, at the time the data was lost due to migration to a new email system, plaintiffs were involved in routine audit and administrative procedures likely to resolve the relevant dispute and thus had no reason to believe litigation would necessarily ensue (?Indeed, not every dispute with the IRS leads to litigation or ?anticipates? litigation); where counsel provided contradictory statements as to whether litigation was anticipated such that a duty to preserve would have arisen, court determined counsel was essentially unreliable and thus relied on ?other testimony or exhibits? and relied on counsel?s testimony only ?sparingly, when it was uncontested?

Nature of Case: Tax litigation

Electronic Data Involved: Emails

Beyer v. Medico Ins. Group, 2009 WL 3817211 (D.S.D. Nov. 13, 2009)

Dec 01 2009

Key Insight: Where defendant claimed responding to discovery would require searching 200,000 claim files but where court determined defendant could sort claims files using specific codes, court found defendant?s assertions ?disingenuous? and ordered production of the requested files; where defendant claimed search remained unduly burdensome because of need to convert certain files to allow text searching, court reasoned that ?the fact that answering [request for relevant discovery] will be burdensome and expensive is not in itself a reason for the court?s refusing to order discovery which is otherwise appropriate? and ordered the production of all documents describing defendant?s electronic means of searching and all software used during the relevant timeframe (as requested by plaintiff) if defendant persisted in claiming an inability to search electronically as a basis for refusing to answer discovery

Nature of Case: Bad faith denial of insurance claims

Electronic Data Involved: Electronic claim files

Amobi v. D.C. Dep?t of Corrs., 262 F.R.D. 45 (D.D.C. 2009)

Dec 01 2009

Key Insight: In this opinion authored by Magistrate Judge Facciola, the court conducted an analysis of waiver pursuant to FRE 502 and found that the attorney work-product privilege was waived by the inadvertent production of an attorney-prepared memorandum where defendants claimed ?several reviews of the documents?were undertaken? but offered no indication of the methodology used to review documents for privilege ?let alone any explanation of why these efforts were?reasonable in the context of the demands made upon the defendants? and thus failed to meet their burden of proving that the privilege was not waived

Nature of Case: Claims arising from DOC officer’s removal from duty following an altercation with an inmate

Electronic Data Involved: Attorney-prepared memorandum

Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009)

Dec 01 2009

Key Insight: Where, when producing voluminous documents in response to Fed. R. Civ. P. 33 they must be accompanied by indices ?to guide the interrogating party to the responsive documents? and where ?rules applicable to producing documents under Rule 33(d) are generally applicable to Rule 34?, court ordered defendant to provide more detailed responses to plaintiffs requests for discovery upon defendants? production of 7000 pages and indication that ?all 7000 pages of documents were responsive to each request?; court reasoned, ?Defendant’s claims that the documents are sufficiently organized because they are bates-stamped and scanned into a CD-ROM are unavailing. Defendant did not refer to specific bates numbers when it responded to the discovery requests at issue, and the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant’s duty to sufficiently identify the location of the relevant documents.?

Nature of Case: Breach of faith and breach of fiduciary duty

Electronic Data Involved: ESI

Catagory:Case Summaries