Case Summaries – Page 309 – Electronic Discovery Law

SD Protection, Inc. v. Del Rio, 587 F. Supp. 2d 429 (S.D.N.Y. 2008)

Dec 01 2008

Key Insight: Where, despite repeated court orders directing production, plaintiff failed to produce an un-redacted email upon which the case turned and claimed the email inaccessible because the computer on which it was stored had been destroyed and where plaintiff failed to pay court ordered sanctions for its failure to produce, court lifted earlier stay of dismissal and ordered plaintiff to pay additional $5000 sanction plus defendant?s attorneys fees and costs

Nature of Case: Breach of contract

Electronic Data Involved: Email

Arista Records LLC v. Does 1-14, 2008 WL 5350246 (W.D. Va. Dec. 22, 2008)

Dec 01 2008

Key Insight: Where a university responded to a subpoena seeking ?all documents and electronically-stored information relating to the assignment of the IP addresses? of unidentified, suspected copyright infringers by producing file logs identifying the dorm rooms associated with the IP addresses at issue and the MAC addresses of the devices used to access the internet, but where it could not provide the names to which the addresses were assigned because the rooms were shared, court denied motion to compel based on specific language of subpoena but permitted service of a third subpoena specifically seeking names of the residents of each room at issue

Nature of Case: Copyright infringement

Electronic Data Involved: Names of ISP subscribers

Williams v. Long, 585 F. Supp. 2d 679 (D. Md. 2008)

Dec 01 2008

Key Insight: Printouts from government websites were self-authenticating pursuant to ER 902(5) where the printouts were published online by a public authority and where the printouts contained identifying information, including the URL and the name of the public entity; acquisition of website printout through FOIA request where website was not available to the public did not prevent self-authentication of the printout; printouts were exceptions to the rule of hearsay pursuant to ER 803(8)

Nature of Case: Violations of FLSA and Wage and Hour Law

Electronic Data Involved: Hard copy print outs of government websites

S. Capitol Enters., Inc. v. Conseco Servs., Inc., 2008 WL 4724427 (M.D. La. Oct. 24, 2008)

Dec 01 2008

Key Insight: Noting that ?perfection in document production is not required?, court denied plaintiffs? motion for sanctions or additional discovery orders where defendants offered valid reasons for the non-production of some data, performed a thorough search of their systems for the requested information, and explained that there were no other sources to search and where the burden of production outweighed the likely benefit; court indicated that ?experts can extrapolate and estimate from available data in order to perform calculations and provide opinions.?

Electronic Data Involved: ESI

Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008)

Dec 01 2008

Key Insight: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email and other ESI

Ferron v. Echostar Satellite, LLC, 2008 WL 341310 (S.D. Ohio Feb. 6, 2008)

Dec 01 2008

Key Insight: Concluding that ESI sought from plaintiff’s computers directly related to issues in dispute and that the computers likely contained certain relevant evidence that was not contained on CD-ROMs or email attachments previously produced by plaintiff, court granted defendants? motion for an extension of the date by which to designate experts to a date after their inspection of plaintiff’s computers; court extended various discovery deadlines and ordered parties to confer to formulate a procedure reasonably calculated to afford the moving defendants the discovery to which they were entitled, while at the same time protecting plaintiff?s privileged information

Nature of Case: Plaintiff alleged claims under Ohio consumer protection laws based upon emails received from defendants

Electronic Data Involved: Computer hard drives

Tse v. UBS Fin. Servs., Inc., 2008 WL 463719 (S.D.N.Y. Feb. 19, 2008)

Dec 01 2008

Key Insight: Plaintiff’s grossly negligent failure to produce laptop computer earlier in litigation reflected blatant disregard of her discovery obligations; court granted post-trial motion for sanctions and awarded defendant its fees and costs for: drafting pre-trial spoliation motion concerning plaintiff?s laptop; addressing plaintiff’s last-minute discovery of laptop; submissions to court regarding data retrieval issues and how defendant?s pretrial spoliation motion was affected; and drafting a new motion for sanctions based on plaintiff’s misconduct with respect to laptop and prejudice to defendant

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop

Am. Express Co. v. Goetz, 515 F.3d 156 (2nd Cir. 2008)

Dec 01 2008

Key Insight: Second Circuit found no error in trial court’s order denying plaintiff’s request to examine in their entirety numerous computer hard drives belonging to Ogilvy and American Express employees and granting the request only to the extent it involved electronic records pertinent to disputed dates of creation of two documents, since plaintiff failed to show any error in district court’s determination that ?such wholesale rummaging? through American Express’s electronic records was not appropriate

Nature of Case: Trademark infringement and misappropriation

Electronic Data Involved: Computer hard drives of employees of American Express and Ogilvy who worked on a particular ad campaign

Monson v. Albertson’s Inc., 2008 WL 1925134 (D. Utah Apr. 30, 2008)

Dec 01 2008

Key Insight: Resolving a number of discovery issues, court denied plaintiff?s motion to compel production of emails and other stored electronic data concerning plaintiff, stating: ?Plaintiff’s bald assertion that there must be more e-mails than the 100 already produced is not persuasive to the court.?

Nature of Case: Gender discrimination, harassment, retaliation and constructive discharge

Electronic Data Involved: Email and other ESI

Whitney v. JetBlue Airways Corp., 2008 WL 2156324 (E.D.N.Y. Apr. 29, 2008)

Dec 01 2008

Key Insight: Where handwritten IIR was included with numerous other similar documents and destroyed en masse by airline under document retention policy, court found that, although there was a ?disturbing amount of carelessness on defendant’s part? in its retention and production of the IIRs, plaintiff had not demonstrated that handwritten IIR would have been favorable to her case or that she was prejudiced by its absence; accordingly, court declined to impose any spoliation sanctions but awarded plaintiff her fees and costs in connection with motion

Nature of Case: Airline passenger allegedly injured by another passenger sued airline claiming negligent failure to protect and gross negligence

Electronic Data Involved: Original handwritten ?Inflight Irregularity Report? and conflicting electronic versions of same

Catagory:Case Summaries