Local Rule – Page 6 – Electronic Discovery Law

Tener v. Cremer, 931 N.Y.S.2d 552 (N.Y. App. Div. 2011)

Dec 01 2011

Key Insight: Addressing the obligation of a non-party to produce ESI that was deleted through ?normal business operations?, the court found that the Naussau Guidelines provided the best approach to determine the third party?s obligation to produce allegedly inaccessible data where the guidelines called for a cost/benefit analysis involving the difficulty of the production at issue; court found plaintiff had shown ?good cause? for needing the requested ESI but that there was insufficient evidence of the non-party?s alleged burden of production (including, for example, whether the at-issue ESI had actually been deleted, whether it could actually be retrieved, the cost of such retrieval, etc.) and thus remanded the case to the Supreme Court for ?a hearing on whether the information plaintiff seeks is ?inaccessible? and hence whether [the non-party] has the ability to comply with the subpoena; the appellate court reversed the Supreme Court?s ruling holding the non-party in contempt for failure to comply with a judicial subpoena

Nature of Case: Defamation

Electronic Data Involved: Identity of all persons who accessed the internet using a certain computer or internet portal on a certain day

Commonwealth Fin. Sys., Inc. v. Smith, No. 3435 EDA 2009, 2011 WL 489704 (Pa. Super. Ct. Feb. 14, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed trial court?s exclusion of electronic business records obtained by the plaintiff from the former holders of defendant?s debt, where the trial court properly concluded that the a representative of the plaintiff corporation was not ?the right person to establish the Citibank records? (because he was not familiar with how the records were created or maintained and had no personal knowledge of the entries on the at-issue spreadsheet, for example) and held that ?CPS failed to establish the trustworthiness and reliability of the records sufficiently to permit their admission into evidence? pursuant to Pennsylvania Rule of Evidence 803(6), among other things

Nature of Case: Action to collect credit card debt

Electronic Data Involved: Electronic records

People v. Lesser, No. H034189, 2011 WL 193460 (Cal. Ct. App. Jan. 21, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed trial court?s admission of printouts of online chats preserved by a police officer, despite the fact that the version presented at trial contained emoticons that prior versions presented at preliminary examination did not or that introductory lines for the chats were not preserved in the printouts, where the officer ?offered sufficient evidence of the method by which he preserved the text? and where he testified that ?the printouts were accurate and complete? representations of the chats; the printouts were not inadmissible hearsay as argued by defendant because they were not offered for the truth of the matters asserted but rather were offered to show that defendant in fact made the statements

Nature of Case: Attempted distribution of harmful matter to a minor over the internet and related charges

Electronic Data Involved: Instant messages

People v. Saibu, D054980, 2011 WL 73314 (Cal. Ct. App. 2011)

Dec 01 2011

Key Insight: Where trial court admitted enhanced digital photos despite prosecution?s failure to disclose that the photograph had been enhanced, or how , but offered defendant an opportunity to remedy the prejudice and locate an opposing expert, appellate court found no abuse of discretion; appellate court found no error in trial court?s failure to require a Kelly hearing with respect to the enhancement techniques where it was ?questionable? whether the Photoshop program used could be considered a scientific technique and where the expert testified that he had been using Photoshop since for 8 years, that it was ?widely available? and ?considered an essential tool? and where an appellate court in Washington had previously determined that the enhancement of latent prints with Photoshop was ?generally accepted in the relevant scientific community?; foundation was properly laid for admission of photos where expert testified as to how they were created and where ?other witnesses? testified that the surveillance video (from which still photos were taken) accurately depicted the events they had witnessed

Nature of Case: Robbery, murder

Electronic Data Involved: Enhanced digital photo

Osborne LLC v. C.H. Robinson Co., No. 08 C 50165, 2011 WL 5076267 (N.D. Ill. Oct. 25, 2011)

Dec 01 2011

Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Squeo v Norwalk Hosp. Assoc., No. CV095012548, 2011 WL 7029761 (Conn. Super. Ct. Dec. 16, 2011)

Dec 01 2011

Key Insight: In ongoing case addressing plaintiff?s claims of wrongful death resulting from their son?s release from the hospital and subsequent suicide, the court denied defendant?s motion to compel inspection of parents? personal home computer where parents alleged their son?s use of the computer was limited, where plaintiffs made significant efforts to assist in the retrieval of potentially relevant ESI from third parties including AOL, Facebook, and MySpace, where the requested inspection was unlimited by scope of data range, and where there was only speculation as to the existence of relevant evidence; court?s analysis included consideration of newly adopted revisions to Connecticut Practice Book

Nature of Case: Wrongful death

Electronic Data Involved: Personal computer

In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?

Electronic Data Involved: Contents of personal computer, storage devices

Innis Arden Golf Club, Inc. v. O?Brien & Gere Eng?rs. Inc., No. CV106006581, 2011 WL 6117908 (Conn. Super. Ct. Nov. 18, 2011)

Dec 01 2011

Key Insight: Where plaintiff produced 64,350 pages of documents in electronic form without identifying what request the documents were responsive to, the court ordered the parties to cooperate to prepare a load file to assist in defendant?s review and ordered defendant to bear the cost and, where the court agreed with defendants that metadata was an ?important source for the defendants as part of the orderly production? of ESI, the court ordered the parties to cooperate ?in completing the metadata requested by the defendants in an appropriate format? and that ?outside costs, if any, other than copying costs for the metadata [would] also be borne by the defendants?

Electronic Data Involved: ESI, metadata

People v. Spykstra, 234 P.3d 662 (Colo. 2010)

Dec 01 2010

Key Insight: Reversing the order of the trial court, the Supreme Court established 5 part test to challenge the issuance of a pretrial subpoena and quashed the subpoenas issued by defendant where, by ordering the relevant individuals to submit their computers to inspection by defendant?s expert, the trial court ?improperly converted the subpoenas into the functional equivalent of search warrants? and where defendant failed to establish any factual basis demonstrating a reasonable likelihood that the emails sought existed or that they contained material evidence

Nature of Case: Criminal

Electronic Data Involved: Emails, Contents of hard drives

State v. Norris, 236 P.3d 225 (Wash. Ct. App. 2010)

Dec 01 2010

Key Insight: Where State refused to produce images to be used against defendant in court and, to avoid being subject to subpoena, gave possession of the evidence to the federal government who was not subject to subpoena, the appellate court granted defendant?s petition for discretionary review, stayed the trial court?s proceedings, and held that the Adam Walsh Act (a federal statue restricting copying and distribution of image of child pornography in federal court proceedings) does not preempt state law requiring full disclosure of the State?s evidence; the case was remanded for further proceedings

Nature of Case: Sex offenses against minors

Electronic Data Involved: Hard drive, copies of electronic images

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