Case Summaries – Page 338 – Electronic Discovery Law

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

Legacy, Inc. v. Tekserve POS, LLC, 2007 WL 772958 (N.D. Ill. Mar. 12, 2007)

Dec 01 2007

Key Insight: Where defendant discarded his hard drive the day after the lawsuit was filed, court granted plaintiff’s motion for spoliation sanctions but ordered plaintiff to pare down the requested fees and expenses to those having a proximate causal nexus to the spoliation; court further ordered counsel to meet and confer on the issue

Nature of Case: Company sued former employee who downloaded proprietary files just prior to resigning and going to work for competitor

Electronic Data Involved: Confidential files

Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007)

Dec 01 2007

Key Insight: Court ordered defendants to organize and label documents to correspond with discovery requests, or provide an index, and to submit declarations by qualified computer technicians or forensic experts setting forth specific details of any lost or destroyed data or damaged hard drives; court reserved the option to appoint a neutral computer forensic expert as a special master to investigate and assess any claim by defendants that their computer servers or hard drives were damaged during the seizures or that electronic records were lost or destroyed

Nature of Case: Infringement litigation

Electronic Data Involved: Electronic documents, hard drives

Gragg v. Int’l Mgmt. Group, 2007 WL 1074894 (N.D.N.Y. Apr. 5, 2007)

Dec 01 2007

Key Insight: After weighing the four factors identified as relevant under the federal common law of waiver, and particularly given the casual nature of defendants’ efforts to insure against inadvertent disclosure, court found that inadvertent production of four privileged emails (of 200 total produced on CD-ROM) effected limited waiver; plaintiff’s counsel would be permitted to keep the privileged emails and to utilize them freely in connection with the pending litigation

Nature of Case: Breach of contract and fraud

Electronic Data Involved: Privileged emails

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 2122437 (D. Kan. July 20, 2007)

Dec 01 2007

Key Insight: Although court found it “bothersome” that it no attempt at all was made by some of the founders to search, even on a random basis, their personal or office emails, balancing the burden on the founders of conducting full email searches of their non-@hssh.org email accounts against the likelihood that such searches would recover few, if any, additional documents not already produced by Heartland, court declined to require founders to conduct any searches of their personal email accounts in responding to subpoenas

Nature of Case: Antitrust and tortious interference litigation

Electronic Data Involved: Personal email accounts of plaintiff’s founders

Doe v. Morey Charter Sch., 2007 WL 2331864 (E.D. Mich. Aug. 14, 2007)

Dec 01 2007

Key Insight: District court overruled plaintiff’s objections to magistrate judge’s order denying in part motion to compel since order was not clearly erroneous; although plaintiff argued that more material should have been produced, defendants represented that they had produced everything and magistrate judge noted that both sides’ counsel had access to mirror images of hard drives containing the requested data which had been seized in police investigation

Nature of Case: Allegations of sexual abuse and harrassment by former elementary school teacher

Electronic Data Involved: Email and other ESI

In re Hawaiian Airlines, Inc., 2007 WL 3172642 (Bankr. D. Haw. Oct. 30, 2007)

Dec 01 2007

Key Insight: Finding that Mesa?s CFO deleted files that Mesa had duty to preserve, used special software to wipe hard drives and changed computer’s clock in an attempt to conceal what he had done, and that Mesa could have taken reasonable, inexpensive and non-burdensome steps that would have prevented or mitigated the consequences of CFO’s destruction of evidence, court concluded that adverse inference was appropriate and made certain findings of fact which were binding and conclusive for all purposes in the case

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

In re EZ Pay Servs., Inc., 380 B.R. 861 (Bankr. M.D. Fla. 2007)

Dec 01 2007

Key Insight: Court approved Trustee?s request for permission to pay computer forensics expert $70,000 as a necessary cost and expense of preserving the estate, where recovery of deleted electronic information was necessary to enable Trustee to locate and administer valuable assets of estate and to understand debtor’s prepetition transactions, and where expert?s services provided a concrete benefit for the estate since approximately $400,000 in assets was recovered by Trustee as a result

Nature of Case: Bankruptcy case

Electronic Data Involved: 14 hard drives; deleted data

Omax Corp. v. Flow Int’l Corp., 2007 WL 1830631 (W.D. Wash. June 22, 2007)

Dec 01 2007

Key Insight: Even if database was incomplete and potentially unhelpful, court found that plaintiff was nonetheless entitled to information contained in the database since it did have some value and was relevant to plaintiff?s damages case, and its production did not appear to involved undue cost or complexity

Nature of Case: Patent infringement

Electronic Data Involved: Database

Reino de Espana v. Am. Bureau of Shipping, 2007 WL 1686327 (S.D.N.Y. June 6, 2007)

Dec 01 2007

Key Insight: Declining to grant sanction of dismissal since there was insufficient evidence of intentional or bad faith conduct, or adverse inference instruction since it was unclear how relevant the missing email was, court awarded monetary sanctions since Spain?s failure to timely implement adequate litigation hold and failure to conduct timely and diligent search for electronic discovery was negligent and resulted in loss of email; court further directed Spain to complete its forensic search for email records and produce such records on rolling basis

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email

Catagory:Case Summaries