Case Summaries – Page 312 – Electronic Discovery Law

Naik v. Boehringer-Ingelheim Pharm., Inc., 2008 WL 4866015 (N.D. Ill. Jun. 19, 2008)

Dec 01 2008

Key Insight: Court declined to find waiver of privilege where privileged portion of email was inadvertently produced amidst 2,300 pages and where defendant took immediate action to assert privilege, reasserted privilege at deposition, and produced a revised privilege log within five days; court also noted lack of prejudice to plaintiffs

Nature of Case: Wrongful termination

Electronic Data Involved: Privileged email

Alcon Mfg., Ltd. V. Apotex, Inc., 2008 WL 5070465 (S.D. Ind. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court ordered return of electronically produced document containing privileged notations where document was inadvertently produced due to an ?electronic break error? and where upon realizing the inadvertent production, plaintiff objected to the use of the document and sought its return; in so holding, court considered applicability of ER 502 and a protective order between the parties that contemplated the non-waiver of privilege upon inadvertent production

Nature of Case: Patent lawsuit

Electronic Data Involved: Electronically produced document

U.S. v. Poulin, 592 F. Supp. 2d 137 (D. Me. 2008)

Dec 01 2008

Key Insight: Where defendant?s audio consultant identified potential inaccuracies between the audio tapes produced and the original recordings, and where the original recordings were subject to disclosure pursuant to Fed. R. Crim. P. 16, court granted plaintiff?s motion for access to the original Exxacom system recordings ?to confirm that the recordings?are faithful reproductions?; acknowledging defendant?s burden in re-production where many hours had already been spent, court observed, ?The Government?s burden is measured in hours; the Defendant?s in years.?

Nature of Case: Criminal production of child pornography

Electronic Data Involved: Audio recordings

Superior Prod. P?ship d/b/a/ PBSI v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D. Ohio Dec. 2, 2008)

Dec 01 2008

Key Insight: Court ordered electronically stored documents produced in native format in light of preference for such production in Rule 26 and where no obstacles to production were articulated; where plaintiff requested production of large volume of relevant documents and where deposition witness indicated that the information would be easily retrieved from defendant?s electronic database, court recognized potential burden to defendant and ordered production of sampling of documents to allow for determination of the need to produce the rest; court also ordered parties to meet and confer regarding the necessary volume of production of documents related to cost where documents were necessary to address the accuracy of previously produced summary and thus production of all such documents was not required, where information was available in electronic format, though, defendants were ordered to produce it

Nature of Case: Predatory pricing

Electronic Data Involved: ESI

J&M Assocs., Inc. v. Nat?l Union Fire Ins. Co. of Pittsburgh, Pa., 2008 WL 5102246 (S.D. Cal. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiff deleted potentially relevant emails despite a duty to preserve, court granted defendants access to plaintiff?s servers to perform electronic recovery of deleted emails; court ordered defendant to retain independent professional to perform recovery at defendants? expense and for recovered emails to be provided directly to plaintiff?s counsel for review and production

Electronic Data Involved: Deleted emails

Ingoglia v. Barnes & Noble Coll. Booksellers, Inc., 852 N.Y.S.2d 337 (N.Y. App. Div. 2008)

Dec 01 2008

Key Insight: Appellate court reversed trial court?s denial of motion to dismiss complaint as sanction for spoliation, and granted motion to dismiss, where defendant’s expert found that numerous files, images, and folders, as well as some history of the plaintiff’s internet usage had been deleted between date defendant demanded inspection of plaintiff’s computer and date of inspection, and evidence showed that defendant suffered severe prejudice

Nature of Case: Defamation

Electronic Data Involved: Files on plaintiff’s home computer

In re Seroquel Prods. Liab. Litig., 2008 WL 508391 (M.D. Fla. Feb. 21, 2008)

Dec 01 2008

Key Insight: Court issued a number of discovery rulings, among them an order requiring AstraZeneca to produce communications between members of the Benefit/Risk Team for Seroquel; court reasoned: “Given the scope of this litigation, requiring a limited number (even 100) of known individuals to search for significant information is not an undue burden.”

Nature of Case: Drug product liability

Electronic Data Involved: Email

Eckhardt v. Bank of Am., N.A., 2008 WL 1995310 (W.D.N.C. May 6, 2008)

Dec 01 2008

Key Insight: Where plaintiff established through deposition testimony that discoverable documents existed which had not been produced, but court found no bad faith, court declined to give adverse inference instruction and instead allowed plaintiff to seek missing documents from backup tapes and to corroborate substance of any missing documents from witnesses where documents themselves could be recovered

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email; backup tapes

Ex Parte Vulcan Materials Co., 2008 WL 1838309 (Ala. Apr. 25, 2008)

Dec 01 2008

Key Insight: Adopting the same approach as that in Ex parte Cooper Tire & Rubber Co., 2007 WL 3121813 (Ala. Oct. 26, 2007), Alabama Supreme Court directed trial court to reconsider Vulcan?s motion for a protective order as to emails sought in light of FRCP 26(b)(2)(B) and Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) and in light of Vulcan?s arguments that the requested emails likely constitute work product and would not likely lead to relevant information

Nature of Case: Company petitioned for writ of mandamus seeking review of trial court?s order on post-trial discovery related to motion for remittitur of punitive damages awarded in underlying action for breach of contract, tortious interference with contractual relations, and civil conspiracy

Electronic Data Involved: Email

Canon U.S.A., Inc. v. S.A.M., Inc., 2008 WL 2522087 (E.D. La. June 20, 2008)

Dec 01 2008

Key Insight: Where owner of defendant SAM admitted that boxes of SAM’s files and SAM’s server were stored in his home, but he had not affirmatively searched the boxes or server on his own for responsive information, and indicated, rather, that his wife and son looked through the documents when they could, court found discovery responses insufficient and ordered SAM to provide supplemental responses within 15 days; court further ordered SAM to hire a qualified third-party forensic computer specialist to conduct a search of SAM’s computer server since it was unclear whether owner?s son had the technological know-how to conduct a comprehensive search and owner had treated discovery requests ?lackadaisically?

Nature of Case: Breach of Dealer and Security Agreements

Electronic Data Involved: Paper and electronic documents, computer server

Catagory:Case Summaries