Case Summaries – Page 286 – Electronic Discovery Law

Clearvalue, Inc. v. Pearl River Polymers, Inc., 560 F.3d 1291 (Fed. Cir. 2009)

Dec 01 2009

Key Insight: In an opinion providing an extensive discussion of the court?s authority to sanction pursuant to Rule 37 and its inherent authority, the appellate court confirmed the trial court?s imposition of monetary sanctions finding that appellant-plaintiffs acted in bad faith by failing to produce relevant test results as evidenced by the content of several emails produced for the sanctions hearing (and other evidence) but overturned the trial court?s sanction of striking plaintiff?s claims pursuant to its inherent authority upon finding that plaintiffs? discovery abuses were not sufficiently egregious to warrant such sanctions; appellate court also found trial court?s reliance on inherent authority to strike plaintiffs? pleadings was misplaced in light of the applicability of Rule 37

Nature of Case: Patent Infringement, misappropriation of trade secrets

Electronic Data Involved: Test results

Mancini v. Ins. Corp. of N.Y., 2009 WL 1765295 (S.D. Cal. June 18, 2009)

Dec 01 2009

Key Insight: Where plaintiffs responded to defendants? requests for production by producing 73 CDs containing the entire universe of documents from an underlying litigation, court held that plaintiffs ?cannot fulfill their discovery obligation?without referencing which specific documents were responsive to which specific request? and ordered plaintiffs to provide defendants with a list of documents responsive to each request

Nature of Case: Breach of insurance contract, failure to indemnify

Electronic Data Involved: ESI

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2009 WL 1949124 (N.D. Cal. July 2, 2009)

Dec 01 2009

Key Insight: Stating ?Taishan did not even come close to making reasonable efforts to carry out its preservation of materials??, court ordered adverse inference and monetary sanctions (attorney?s fees and costs) for third-party defendant?s failure to preserve relevant evidence in violation of its litigation related duty to preserve and, in some instances, in violation of its own document retention policies

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: ESI

U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)

Dec 01 2009

Key Insight: Court granted motion to compel production of emails stored for less than 181 days in web-based email account pursuant to government?s trial subpoena upon finding that such emails were not stored for purposes of back up protection and thus not in ?electronic storage? pursuant to The Stored Communications Act such that a warrant was required

Nature of Case: Child pornography

Electronic Data Involved: Previously opened emails stored for less than 181 days in web-based account

FSP Stallion 1, LLC v. Luce, 2009 WL 2177107 (D. Nev. July 21, 2009)

Dec 01 2009

Key Insight: Where parties disagreed regarding the format of production and the need to produce and re-produce ESI with certain metadata, court ordered production of historical accounting data in native format, and for the production of responsive ESI ?in the form of TIF images or other agreed upon file format with the associated metadata?and the OCR file?; court allowed previously redacted privileged documents to be scanned to preserve the privilege

Nature of Case: Claims arising in part from false and misleading statements and omissions concerning financial condition of Golf Club

Electronic Data Involved: Financial information, emails, ESI

Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure

Nov 12 2009

In re Global Power Equip. Group, Inc., 418 B.R. 833 (Bankr. D. Del. 2009)

Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of the claimant and, applying the “comity analysis” as articulated by the United States Supreme Court, determined that the contested matter “should and shall be conducted under the Federal Rules and not under the Hague Evidence Convention.” Accordingly, the motion to compel was granted and claimant was ordered to comply with the contested discovery requests “in accordance with the Federal Rules.”

Defendants and General Counsel Sanctioned for Failure to Preserve Evidence

Nov 11 2009

Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009)

In April 2006, plaintiff Swofford was shot seven times, on his own property, by two deputies in pursuit of two burglary suspects. Plaintiffs brought suit against the sheriff in his official capacity and against the deputies individually. In August 2006, plaintiffs’ counsel sent the first of two letters requesting the preservation of relevant evidence. In February 2007, plaintiffs’ counsel sent a second preservation letter and a notice of claim as required by Florida statute. Defendants did not deny receipt of these letters, but evidence was nonetheless destroyed.

Despite defendants’ receipt of the letters, no litigation holds were ever issued. Rather, the letters were forwarded to six senior employees of the Seminole Country Sherriff’s Office (“SCSO”), including named defendant Sherriff Eslinger. No preservation instructions were provided to the deputies involved in the shooting.

Supreme Court of Arizona holds Metadata is Subject to Public Records Requests

Oct 30 2009

Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009)

In an en banc opinion, the Supreme Court of Arizona vacated (in part) an opinion from the Court of Appeals and held that “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.” [Emphasis added.]

Court Imposes Strict Sanctions for Loss of Video Resulting from City’s Reckless Failure to Ensure Preservation

Oct 29 2009

Peschel v. City of Missoula, 664 F. Supp. 2d 1137 (D. Mont. 2009)

In this case arising from defendant’s claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city’s failure to preserve the video of the arrest that was recorded by a camera in one of the officer’s cars. Finding that the video was lost as a result of the city’s recklessness, the court granted defendant’s motion for sanctions and “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [defendant].”

Court Denies Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”

Oct 28 2009

Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009)

In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants’ “computers and other electronic storage devices” for forensic examination. In support of the motion, plaintiff argued that defendants’ offer to produce emails in “paper form” was insufficient and that defendants were not properly preserving data for production. Noting plaintiff’s failure to make a sufficient showing in favor of such production and the parties’ failure to cooperate to reach agreement on the issues presented, the court denied plaintiff’s motion.

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