Inspection – Page 8 – Electronic Discovery Law

Opperman v. Allstate N.J. Ins. Co., 2008 WL 5071044 (D.N.J. Nov. 24, 2008)

Dec 01 2008

Key Insight: Court granted plaintiffs? request for access to third party?s proprietary software where court determined software and its underlying processes were relevant to plaintiffs? claims and that all less intrusive means to obtain the necessary information had been exhausted; court?s order allowed access to the software by plaintiffs? expert but protected the confidentiality of the information with a protective order that placed limitations on who may access the software and limited the use of the information solely to the litigation

Nature of Case: Challenge to accuracy of insurance company estimates for fire damage

Electronic Data Involved: Proprietary software

Gateway Senior Hous., Ltd. v. MMA Fin., Inc., 2008 WL 5142152 (E.D. Tex. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants? proffered explanations for the destruction of those hard drives was contradicted and ?lame? in light of defendants? knowledge of their relevance and its duty to preserve

Nature of Case: Breach of contract

Electronic Data Involved: ESI, emails, hard drives

Huthnance v. D.C., 255 F.R.D. 285 (D.D.C. 2008)

Dec 01 2008

Key Insight: Where defendants? radio log indicated a relevant communication occurred but where defendants were unable to produce the audio tape, court ordered defendant to produce its document retention policies to show ?whether the [communications] were maintained according to standard procedure?

Nature of Case: Claims arising from alleged illegal arrest and detention

Electronic Data Involved: Audio tapes of phonecalls, access to

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

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

Chevron U.S.A., Inc. v. M&M Petroleum Servs., Inc., 2008 WL 5423820 (C.D. Cal. Dec. 30, 2008)

Dec 01 2008

Key Insight: Where defendant offered plaintiff access to the relevant computer for analysis but where defendant had not yet provided access and had failed to confirm production of all responsive documents from all relevant computers pursuant to court order, court ordered defendant to make computer available within 15 days so that plaintiff?s expert might ?ascertain for itself whether all responsive documents have been produced or?whether any relevant information on the hard drive or drives have been destroyed, erased, or wiped? and to serve verified supplemental responses to discovery indicating ?a diligent search of every computer [at issue]?

Nature of Case: Complaint for declaratory relief pursuant to Petroleum Marketing Practices Act

Electronic Data Involved: Hard drives

Brokaw v. Salt Lake County, 2008 WL 5449065 (D. Utah Dec. 30, 2008)

Dec 01 2008

Key Insight: Despite court?s acknowledgment of the requested data?s relevance, plaintiff?s offer to provide a technical expert to perform the search, and plaintiff?s proffer of at least three alternative search protocols, court denied plaintiff?s motion to compel a school district to search for specified terms in the databases of all its schools where court found that the proposed discovery imposed an excessive burden due to the district?s lack of technical resources and where plaintiff?s proposals failed to sufficiently lessen that burden

Nature of Case: Complaint alleges unreasonable seizure of high school student and use of excessive force resulting in permanent injuries

Electronic Data Involved: Computer databases at all school’s in district

Integrated Serv. Solutions, Inc. v. Rodman, 2008 WL 4791654 (E.D. Pa. Nov. 3, 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion to compel production of search ?hits? from non-party?s laptop where agreed upon neutral third party conducted search, where counsel reviewed hits and concluded none were relevant, and where plaintiff provided no showing of bad faith or indicia of unreliability; court offered plaintiff option to request report indicating methods utilized in search, broad description of documents hit, and confirmation of no evidence of wiping

Electronic Data Involved: Laptop computer files

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

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

Tag:Inspection