Case Summaries – Page 328 – Electronic Discovery Law

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Fortis Corporate Ins., SA v. Viken Ship Mgmt. AS, 2007 WL 3287357 (N.D. Ohio Nov. 5, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff’s motion for spoliation sanctions, finding no basis in the record for concluding that defendant’s failure to preserve email and other materials was so blameworthy that defendant should be deprived, either in whole or part, of the opportunity to defend the case on the merits, and adding: “Perhaps in the fullness of time foreign-based companies doing business in the United States will be held to the same ‘litigation holds’ and other devices now routinely applied by litigants here to make sure pertinent documents and other materials are retained and produced. And perhaps they should be held to the same standards in an era of ever-expanding global trade. Increasingly negligence on the other side of the globe can cause injury locally.”

Nature of Case: Subrogation action against foreign-based shipowner

Electronic Data Involved: Email

Manning v. Gen. Motors, 2007 WL 4246047 (D. Kan. Dec. 4, 2007)

Dec 01 2007

Key Insight: Although court found it ?difficult to imagine? that defendant did not possess any responsive electronic or paper documents, plaintiff submitted no information upon which to question defendant?s representation and court had no basis to compel production; court instead required defendant to supplement discovery responses unconditionally representing that no responsive documents were in its possession, custody or control

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic records identifying vacant positions at GM plant

Kelly v. Montgomery Lynch & Assocs., Inc., 2007 WL 4412572 (N.D. Ohio Dec. 13, 2007)

Dec 01 2007

Key Insight: Where defendant produced no evidence or description of its attempt to engage in a “reasonable inquiry” under FRCP 26 to discover and produce the requested information, other than the general observation that finding the information would be difficult, and where issue of numerosity was important issue for class certification, court ordered defendant to produce information and if it failed to immediately undertake good faith effort to do so, court would allow plaintiff and his counsel ?to inspect in a reasonable manner the Defendant’s files and records, including electronically stored information, on these issues?

Nature of Case: Putative class action alleging violations of Fair Debt Collection Practices Act

Electronic Data Involved: Information regarding number of individuals who received particular letter from defendant collection agency

RLI Ins. Co. v. Indian River Sch. Dist., 2007 WL 3112417 (D. Del. Oct. 23, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff?s untimely motion to re-open discovery and to compel compliance with court?s ?Default Standard for Discovery of Electronic Documents? since plaintiff did not raise or discuss issue of e-discovery during initial conferences nor provide a compelling reason to re-open discovery other than its perceived lack of a significant amount of emails

Nature of Case: Negligent misrepresentation and breach of fiduciary duty

Electronic Data Involved: Email

Haka v. Lincoln County, 246 F.R.D. 577 (W.D. Wis. 2007)

Dec 01 2007

Key Insight: Balancing relevant factors, court ruled that fairness and efficiency required parties to proceed with search for ESI incrementally and limited initial search to emails stored on hard drives; court instructed plaintiff to narrow his search terms, and any additional searches would occur only by joint agreement or court order; parties to share equally the costs of performing initial keyword search, but defendant to pay full cost of privilege/relevance review

Nature of Case: Employment litigation

Electronic Data Involved: Email and other ESI

Tilton v. McGraw-Hill Cos., Inc., 2007 WL 3229157 (W.D. Wash. Oct. 30, 2007)

Dec 01 2007

Key Insight: Where defendants had not shown that plaintiff’s initial disclosures or discovery responses were incomplete or incorrect and parties were not subject to any court order requiring them to produce documents created after the discovery deadline, and applicable legal authority was scant and fairly debatable, court declined to decide whether plaintiff was required to produce emails created after the close of discovery and ruled that plaintiff?s conduct was not sanctionable

Nature of Case: Plaintiff sued publisher alleging breach of a promise to keep his name and employer confidential

Electronic Data Involved: Email created after close of discovery

Williams v. Armstrong, 2007 WL 1424552 (W.D. Mich. May 14, 2007)

Dec 01 2007

Key Insight: District Court sustained plaintiff?s objection to magistrate judge?s discovery order to the extent that factual findings omitted consideration of an exhibit submitted with plaintiff?s motion, which constituted evidence of defendant?s past possession of email which should have been produced in response to a particular discovery request (the exhibit was an email that discussed at least one prior email which was not produced); court remanded to magistrate judge issue of whether to compel further response or production in response to that particular discovery request

Nature of Case: Prisoner asserted claims relating to prison’s Kosher Meal Program

Electronic Data Involved: Email

Forrest v. All Cities Mortg. & Fin., Inc., 2007 WL 3026787 (E.D. Wis. Oct. 16, 2007)

Dec 01 2007

Key Insight: In case where defendant was shutting down its business effective November 1, 2007 and plaintiffs argued that shutdown raised possibility of evidence spoliation, court denied plaintiffs? request for order requiring defendant to preserve documents related to lawsuit since plaintiffs offered no evidence that defendant was actually destroying evidence or failing to retain relevant documentation and because defendant?s duty to prevent spoliation of relevant evidence was inherent in judicial process and business shutdown did not impact it

Nature of Case: Putative class action alleging violations of the Fair Credit Reporting Act

Electronic Data Involved: Unspecified evidence

In re Gupta, 263 S.W. 3d 184 (2007)

Dec 01 2007

Key Insight: Appellate court denied petition for writ of mandamus where trial court appropriately ordered ?death penalty sanctions? (struck all pleadings) for defendant?s discovery violations including repeated failure to produce relevant information, repeated production of fraudulent materials, including diskettes and computers, and repeated false representations to the court; plaintiff filed three motions to compel and at least two motions for sanctions resulting in more than $60,000 in fines before imposition of ?death penalty sanctions? by trial court

Nature of Case: Fraudulent inducement, breach of contract, conversion

Electronic Data Involved: Computers, diskettes, ESI

Catagory:Case Summaries