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From: Kroll Ontrack <[log in to unmask]>
Date: Tue, Sep 9, 2008 at 4:14 PM
Subject: Case Law Update and E-Discovery News
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Case Law Update and E-Discovery News
September 2008 - Volume 8 Issue 10
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Kroll Ontrack's Newly Redesigned Web Site
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_________________________________________________________________
Inside This Issue:
- Recent ESI Court Decisions
- Practice Points: Review and Production Considerations for Multilingual
E-Discovery – Part III
- News & Events
_________________________________________________________________
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Recent ESI Court Decisions
Court Refuses to Apply Zubulake Cost Shifting Factors to Paper Discovery
Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D.Cal. July 31, 2008). In this
class action employment litigation, the defendant objected to the magistrate
judge's order that required them to pay the costs of copying responsive
paper documents. The court stated, "the seven-factor Zubulake test which
[the magistrate judge] applied is intended solely for electronic discovery,
not for discovery of paper documents." According to the court, the rule for
paper documents is that "[a] party producing documents will ordinarily not
be put to the expense of making copies for the requesting party." Relying on
these rules, the court held that the magistrate judge clearly erred by
analyzing the cost-shifting dispute under Zubulake, but granted the
plaintiffs an opportunity to brief the cost-shifting issue on other grounds.
See also Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003).
***
Court Imposes Spoliation Inference for the Failure to Preserve Digital
Surveillance Video
Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008). In this slip
and fall case, the plaintiff appealed the trial court's grant of summary
judgment in favor of the defendant. The trial court held that the plaintiff
failed to provide any evidence that the defendant had constructive knowledge
of the liquid spill which allegedly caused the plaintiff to fall. The
plaintiff argued she was entitled to a spoliation inference based on the
defendant store manager's decision to preserve the digital surveillance
video of the actual fall but not the footage immediately prior to or
subsequent to the fall. The defendant countered that the plaintiff was not
entitled to a spoliation inference because the evidentiary destruction was a
matter of routine practice and was devoid of fraudulent intent. After noting
the store manager's, "conscious and intentional choice not to review or
retain the recorded footage," the court determined that the defendant "both
intentionally and fraudulently destroyed relevant evidence." The court also
stated that the manager's failure to retain the footage "shocks the
conscience of the court and creates a presumption of fraud." Accordingly,
the court granted a spoliation inference against the defendant for the
purpose of summary judgment, but noted that whether a jury would actually
draw a spoliation inference was a matter left for trial and remanded the
case.
***
Court Finds Voluntary Consent to Computer Search Waives Attorney-Client
Privilege
United States v. General Maritime Mgmt., 2008 WL 2810594 (S.D.Tex. July 21,
2008). In this criminal prosecution, the government's material witness filed
a motion to assert attorney-client privilege and for reconsideration of the
court's previous order to disclose a mirror image of the witness' computer
hard drive. The witness previously provided the government with voluntary
consent to search and create a forensically sound image of his computer's
hard drive. Subsequent to this search, the government provided the
defendants with all material relevant to this case. The defendants argued
for disclosure of the imaged hard drive claiming the witness' voluntary
consent waived the attorney-client privilege. Agreeing with the defendants,
the court held that the voluntary disclosure of the hard drive to the
government resulted in waiver of any attorney-client privilege and ordered
the government to produce the mirror image in its entirety.
***
Court Denies Motion Seeking Restoration and Search of Backup Tapes
Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D.Pa. July 21,
2008). In this civil rights case, the plaintiffs requested production of
e-mail stored on backup tapes. The defendants objected, arguing the request
was unduly burdensome and unlikely to produce relevant material. In response
to a previous court order, the defendant provided an estimate that the
search's cost would be a minimum of $10,000. The court analyzed the factors
laid out in Fed.R.Civ.P. 26(b)(2) and cited three factors that weighed
against requiring production: (1) the burden and expense of the proposed
discovery outweighed its likely benefit; (2) the needs of the case limit the
usefulness of the information sought as it could be accessed in a more
cost-efficient and less burdensome manner; and (3) the resources of the
parties involved and the amount in controversy were relatively small. The
court also rejected the plaintiffs' offer to have their own expert search
the backup tapes finding the request unduly burdensome, impractical and
contrary to the spirit of the Federal Rules, noting that privacy concerns
would undoubtedly require the defendant to closely supervise the plaintiff's
search thus creating unnecessary costs.
***
Court Declines to Allow One Party to Mandate the Organization of the
Opposing Party's Production
Suarez Corp. Indus. v. Earthwise Technologies, Inc., 2008 WL 2811162
(W.D.Wash. July 17, 2008). In this litigation involving trademark
infringement, inter alia, the plaintiffs filed a motion to compel seeking
electronic documents. Unsatisfied with the defendants' production, the
plaintiffs asserted the production was a disorganized "document dump" and
that they should be able to specify production format with regard to the
organization of production. Finding the plaintiffs' argument unpersuasive,
the court determined the plaintiffs were without authority to mandate the
defendants' production organization under Fed.R.Civ.P. 34(b). The court also
determined the advisory committee comments to that rule do not specify the
term "form" as referring to the organizational mandates found in
Fed.R.Civ.P. 34(b)(2)(E). Nevertheless, the court required the defendants to
"convey some information as to how the documents were determined to be
responsive or how the documents were kept in the normal course of business."
Accordingly, the court granted the motion to compel in part.
***
Court Declines to Require Reasonable Suspicion for Border Laptop Searches
United States v. Arnold, 2008 WL 2675794 (Cal. July 10, 2008). In this suit
charging the defendant with transporting child pornography, the government
appealed the district court's ruling granting the defendant's motion to
suppress evidence seized from his laptop computer by Customs and Border
Patrol officers. The defendant argued that laptops were more analogous to a
home and the human mind rather than closed containers, because of the
computer's ability to record ideas, e-mails, chats and web habits.
Conversely, the government argued reasonable suspicion was not required
under the Fourth Amendment when dealing with border searches due to, "a
sovereign's inherent authority to protect its territorial integrity."
Finding the district court's decision erroneous, the court held that
reasonable, particularized suspicion is not required for customs officials
to search a laptop or other personal electronic storage devices at the
border.
***
Magistrate Judge Denies Cost-Shifting Motion Due to Untimeliness
Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E.D.Mich. July 7,
2008). In this antitrust litigation, the defendant requested an order under
Fed.R.Civ.P. 26(c) requiring the plaintiffs to share its third party vendor
e-discovery costs for discovery already completed. The defendant supported
their motion with several arguments, including: that the Federal Rules of
Civil Procedure do not envision a ruling on cost shifting early in the case;
that a previously stipulated order reserved the unrestricted right for the
parties to later seek a cost-shifting order; and that cost-shifting is not
restricted to "inaccessible data." Disagreeing with the defendant's
arguments, the court denied the order. The court stated the Federal Rules
"plainly contemplate that a motion for protective relief (including cost
shifting) is to be brought before the court in advance of the undue burden,
cost or expense from which protection is sought." The court reasoned any
other interpretation would offend "common sense" since the rule must be
interpreted as a "means of avoiding undue burden or cost, rather than simply
distributing it."
***
Court Requires Evidence of Intent to Deprive Opposing Party of Useful
Information for Spoliation Claim
Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL
2704859 (N.D.Ohio July 7, 2008). In this breach of contract suit, the
plaintiff sought summary judgment on its spoliation claim. The plaintiff
alleged that the defendant engaged in spoliation of electronic evidence by
failing to issue a litigation hold, thereby neglecting to retain relevant
evidence as well as the destruction of relevant hard drive data. The
plaintiff argued this failure resulted in the destruction of potentially
relevant data, in addition to destruction of evidence contained on computer
hard drives. The court found no direct evidence that the defendant deleted
data with an intent to avoid disclosure to the plaintiff. Determining a
genuine dispute of material fact to exist regarding intent with each aspect
of the plaintiff's spoliation claim, the court denied the plaintiff's
motion.
***
Court Unwilling to be Lenient Towards Pro Se Defendant on Discovery Matters
United States v. Two Bank Accounts, 2008 WL 2696927 (D.S.D. July 2, 2008).
In this litigation seeking forfeiture of two specific bank accounts, the
government filed a motion to compel seeking production of requested
electronic information and production of specified computers used in
transactions alleged in the complaint for imaging. Appearing pro se, the
defendant, who asserted an interest in some of the potentially forfeited
accounts, filed a motion to deny requests for production, claiming undue
expense. Finding insufficient facts to establish undue burden or expense
given the government's ability to travel to the relevant computers and
willingness to copy the relevant documents at their own expense, the court
granted the motion to compel. Additionally the court sternly reminded the
defendant that discovery is "not a game" but is a "two-way street" that must
be diligently followed. See also United States v. 11 Bank Accounts, 2008 WL
2660969 (D.S.D. July 2, 2008).
To view additional case summaries visit:
http://www.krollontrack.com/case-summaries/?news=US_CaseLaw_Sept_08
--
Peterk
Richmond, Va
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