Case Summaries – Page 301 – Electronic Discovery Law

Lipari v. U.S. Bancorp, N.A., 2008 WL 2874373 (D. Kan. July 22, 2008)

Dec 01 2008

Key Insight: Noting that Rule 26(a)(1)(A)(ii) was disjunctive and allowed a party to provide either a copy or description of documents, court found that plaintiff had complied with rule by providing CD containing documents to defendants (regardless of whether document descriptions contained in disclosure statement were insufficient or whether CD was ?searchable?), but directed plaintiff to file supplemental disclosure statement in which he affirmatively states that documents contained on CD were documents he may use to support his claims

Nature of Case: Breach of contract, fraud, trade secret misappropriation and breach of fiduciary duty

Electronic Data Involved: CD containing documents listed in plaintiff?s Rule 26(a)(1) disclosure statement (consisting of more than 11,000 pages)

Barrett v. Ambient Pressure Diving, Ltd., 2008 WL 4280360 (D.N.H. Sept. 16, 2008) (Unpublished)

Dec 01 2008

Key Insight: Sanction of dismissal not warranted where data stored on dive computers was lost when it could no longer be downloaded after one year, since plaintiff did not engage in deliberate destruction, she did not know whether data was helpful or hurtful to her case because she had not seen it, and she had not known that data would automatically become unavailable for download after one year; defendant?s entitlement to alternative relief to be decided at trial; court further granted plaintiff?s motion for summary judgment dismissing defendant?s counterclaims for ?fraud on the court? and ?spoliation of evidence?

Nature of Case: Negligence, product liability, wrongful death

Electronic Data Involved: Dive information stored on VR3 dive computers

Cantrell v. Cameron, 195 P.2d 659 (Colo. 2008)

Dec 01 2008

Key Insight: Finding the court abused its discretion when it ordered production of a laptop for inspection but declined to incorporate restrictions or narrow scope of inspection and denied defendant?s motion for a protective order despite confidentiality concerns including attorney-client privilege and proprietary business information, appellate court vacated order and directed lower court to issue protective order limiting scope of inspection; court noted that while personal computers do implicate confidentiality issues requiring ?serious consideration of a person?s privacy interest,? ?a personal computer?s contents are not confidential by nature?

Nature of Case: Traffic accident resulting in personal injury

Electronic Data Involved: ESI, laptop

Lessley v. City of Madison, Ind., 2008 WL 4977328 (S.D. Ind. Nov. 20, 2008)

Dec 01 2008

Key Insight: Where defendants failed to timely respond to discovery requests, failed to respond to two motions to compel, and where individual defendant testified he made no attempt to look for files or emails in response to discovery requests, Court granted motion for sanctions and issued order setting final deadline for production, barring all of defendants? objections to production except attorney-client privilege, fining defendants $1,000 and ordering payment of plaintiffs? attorney?s fees

Nature of Case: Suit for damages resulting from improper strip search

Electronic Data Involved: Emails, ESI

Oldenkamp v. United Am. Ins. Co., 2008 WL 4682226 (N.D. Okla. Oct. 21, 2008)

Dec 01 2008

Key Insight: Court denied motion to compel where plaintiff failed to offer any evidence that requested emails existed and where defendant offered sworn testimony that all responsive document had been produced; court also denied plaintiffs? motion for spoliation sanctions where plaintiff offered no evidence that allegedly spoliated materials existed; where defendant indicated its inability to locate a particular document but produced audio tapes detailing the contents, court declined to impose sanctions because plaintiffs offered no evidence of defendant?s intentional destruction of evidence and because plaintiffs suffered no prejudice in light of alternative source for requested information

Nature of Case: Litigation concerning insurance company’s denial of benefits

Electronic Data Involved: Email, ESI

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2008 WL 5423316 (S.D.N.Y. Dec. 31, 2008)

Dec 01 2008

Key Insight: Citing Aguilar v. United States Dep?t of Homeland Sec, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008), which stated: ?In the absence of an issue concerning the authenticity of a document or the process by which it was created, most metadata has no evidentiary value.?, court denied motion to compel production of metadata where plaintiff failed to show its relevance and made no claim that the documents had been improperly modified

Nature of Case: Claims arising from the Securities Exchange Act

Electronic Data Involved: ESI, metadata

Klayman v. Freedom’s Watch, Inc., 2008 WL 5111293 (S.D. Fla. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court denied defendants’ motion for taxation of e-discovery costs amounting to $150,000 where defendant retained an outside firm to handle collections but failed to show the costs were “reasonable costs” pursuant to U.S.C ? 1920(4); court noted that “[i]n a non-electronic document case this work would be performed by paralegals and associate attorneys and would not be compensable under 28 U.S.C. ? 1920.”

Electronic Data Involved: ESI

Apsley v. Boeing Co., 2008 WL 191418 (D. Kan. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where structure of Boeing?s privilege log was result of the same emails (containing legal advice) being stored in more than one email file and/or legal advice being repeated in email strings, and Boeing listed all of the email messages by Bates number where legal communication was located, but redacted only the portion of the string that contained legal communications, court concluded that log adequately supported Boeing?s claim of privilege for multiple copies of the same communication, noting: ?The organization of a privilege log for electronic documents existing in multiple locations presents a challenge. Perhaps a better method would be to list the original legal communication by date, author and recipient and thereafter indicate that the other Bates-stamped documents are copies or a repeat of the original legal communication. However, electronic discovery is an evolving practice and Boeing will not be faulted for its efforts to organize the privilege log.?

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Kounelis v. Sherrer, 529 F. Supp. 2d 503 (D.N.J. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence

Nature of Case: Prisoner asserted ? 1983 action against various prison defendants

Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff

Outside the Box Innovations, LLC v. Travel Caddy, Inc., 2007 WL 5155945 (N.D. Ga. Mar. 27, 2008)

Dec 01 2008

Key Insight: Ruling on a number of discovery issues, court found that defendant?s production of electronic documents was proper, notwithstanding fact that production included numerous non-working files as well as unresponsive and offensive content; court noted that inappropriate and inoperable files represented small percentage of total documents produced, that defendant appeared to have been diligent in attempting to minimize such problems, and that ?it is likely that all electronic document production carries some possibility of technical difficulties?

Nature of Case: Patent infringement

Electronic Data Involved: Unspecified electronic files

Catagory:Case Summaries