Case Summaries – Page 309 – Electronic Discovery Law

L.H. v. Schwarzenegger, 2008 WL 2073958 (E.D. Cal. May 14, 2008)

Dec 01 2008

Key Insight: Where defendants converted ESI from their original format, which had been searchable and sortable, into PDF files which did not have these capabilities, court cited Advisory Committee Notes to the 2006 amendment to FRCP 34(a)(1)(A) and found that defendants violated Rule 34 by producing documents which were not searchable or sortable, notwithstanding that plaintiffs did not request the documents in native electronic format; court ruled on various other discovery disputes and awarded plaintiffs monetary sanctions in light of defendants’ “purposeful foot dragging on discovery” and resulting prejudice to plaintiffs

Nature of Case: Class action lawsuit regarding California’s treatment of juvenile wards and parolees

Electronic Data Involved: Databases and other ESI

Hightower v. Heritage Acad. of Tulsa, Inc., 2008 WL 2937227 (N.D. Okla. July 29, 2008)

Dec 01 2008

Key Insight: Observing that defendant had not argued that requested emails were not reasonably accessible and had not otherwise demonstrated that production of emails by four identified individuals on single topic over four-year period was unduly burdensome, court rejected defendant?s overbreadth and burdensome objections and ordered defendant to produce responsive documents

Nature of Case: Employment discrimination, wrongful termination

Electronic Data Involved: Emails sent or received by four members of defendant’s Board of Trustees pertaining to plaintiff and/or her employment

Wong v. Thomas, 2008 WL 4224923 (D.N.J. Sept. 10, 2008) (Not for Publication)

Dec 01 2008

Key Insight: Where defendants were able to produce responsive emails from plaintiff?s email account, but could produce no other emails from accounts of various defendants or from Department of State due to routine ?purging? procedures that included closing individuals’ email accounts, deletion of files from their office computers after they leave employment, and routine deletion of files from State’s email servers, court denied plaintiff?s motion for spoliation sanctions finding that defendants had acted in good faith and that plaintiff had not met threshold showing of relevancy of any specific evidence that was lost

Nature of Case: Discrimination based on race and national origin, wrongful termination

Electronic Data Involved: Email

Ideal Aerosmith, Inc. v. Acutronic USA, Inc., 2008 WL 4693374 (W.D. Pa. Oct. 23, 2008)

Dec 01 2008

Key Insight: Court ordered production of a 30(b)(6) deponent with sufficient knowledge of designated topics and monetary sanctions against defendant where defendants? designated deponent was unable to answer ?the most basic questions? regarding defendants? response to discovery including what computers were searched for documents, what backup tapes or other media was searched, and what backup media was utilized by the company; court stated that deponent had obligation to educate self on designated issues prior to deposition

Nature of Case: Statutory Action arising from 18 U.S.C. ? 2511 (Wiretapping)

Electronic Data Involved: Testimony from 30(b)(6) deponent regarding discovery responses

Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution

Nature of Case: Wrongful termination, discrimination

Electronic Data Involved: Laptop

Truckstop.net, LLC, v. Sprint Corp., 547 F.3d 1065 (9th Cir. 2008)

Dec 01 2008

Key Insight: Where defendant appealed District Court order for plaintiff to return inadvertently produced email and for privileged portions of the email to be redacted, Ninth Circuit dismissed appeal for lack of jurisdiction pursuant to the collateral order doctrine where the alleged harm from disclosure had already occurred and where defendant did not allege additional harm

Nature of Case: Contract dispute

Electronic Data Involved: Privileged email

MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 5381864 (E.D. Mich. Dec. 22, 2008)

Dec 01 2008

Key Insight: Despite their production?s compliance with Fed. R. Civ. P. 34, court ordered defendants to specifically identify documents responsive to particular requests where plaintiff could not ?easily locate the documents? responsive to those requests within the production; court ordered defendant to use search terms provided by plaintiffs, despite objections of burden and privilege, but ordered use of connector term ?and? rather than ?or? to return documents ?more responsive? to the requests; court declined to order forensic imaging of hard drive but ordered defendant?s expert to produce attorney?s eyes only report of examination of the hard drive to address specific concerns and to provide plaintiffs with a directory list for all defendant?s non-Altair computer hard drives

Nature of Case: Theft of trade secrets

Electronic Data Involved: ESI, email, hard drives

Martone v. Burgess, 2008 WL 5120047 (N.D. Cal. Dec. 3, 2008)

Dec 01 2008

Key Insight: Where defendants failed to demonstrate prejudice if required to preserve information, failed to adequately establish the inaccessibility of the information sought, and failed to demonstrate the absence of ?questions serious enough to require litigation,? court granted plaintiffs? motion for preliminary injunction and preservation order requiring defendants to preserve information useful for identifying persons accessing plaintiffs? intellectual property through defendants? website

Electronic Data Involved: Information regarding visitors to a particular website

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

Catagory:Case Summaries