Electronic Records Case Law

The following links to non-OhioERC documentation regarding case law pertaining to electronic records are provided for the benefit of visitors. No particular endorsement of these sites is intended or implied, nor should this be construed as legal advice.

Open Meetings Act
Social Media
Value of RIM


Zubalake v. UBS Warburg (2003, 2004) During 2003 and 2004, United States District Court Judge Shira A. Scheindlin issued five groundbreaking opinions in the case of Zubulake v UBS Warburg. Zubulake is generally considered the first definitive case in the United States on a wide range of electronic discovery issues. These issues include: The scope of a party’s duty to preserve electronic evidence during the course of litigation; Lawyer’s duty to monitor their clients’ compliance with electronic data preservation and production;Data sampling;The ability for the disclosing party to shift the costs of restoring inaccessible back up tapes to the requesting party;The imposition of sanctions for the spoliation (or destruction) of electronic evidence.

Kyle Pippens et al. v. KPMG (2012) In Pippins v. KPMG LLP, KPMG sought a protective order to require the preservation of only a random sample of 100 hard drives from among those it had already preserved for this and other litigation or shift the cost of any preservation beyond that requested scope. Lawyers for Pippins won a ruling last November by Magistrate Judge James Cott to use all available drives and Judge Cott encouraged the parties to continue to meet and confer to reach agreement on sampling. However, the parties were unable to agree and KPMG appealed to the District Court.

Gentex Corp. v. Sutter et al. (2009/2011) In discovery dispute involving many forms of e-discovery including portable media devices, emails, employees’ home computers, and improperly destroyed backup tapes, Court found that some of the defendants had engaged in evidence spoliation and granted summary judgment against those defendants.

Sekesui American Corp. v. Hart (2012/2014) In case involving “willful destriction of ESI” Sekisui was ordered to pay $83,408.36 in attorney’s fees related to spoilation motion.

Sims v. Lakeside Schools (2007) Defendants sought order allowing review of plaintiff’s laptop hard drive. Court found that plaintiff had no reasonable expectation of privacy in the contents of a laptop furnished by school, including emails sent from school account. However, web-based emails used to communicated with his attorney and spouse were protected under attorney-client privilege and martial communications privilege. Presumably, web-based emails not sent to plaintiff’s wife or attorney were discoverable.

Fasteners for Retail v. DeJohn (2014) Appeal from trial court order compelling defendants to produce computer hard drives for forensic imaging granted pursuant to framework set forth in: Bennett v. Martin, 186 Ohio App. 3d 412 10 Dist., 2009

Open Meetings Act

Beck v. Shelton, 593 S.E.2d 195 (2004) City council members in Virginia corresponded with each other concerning specific items of public business by email but not by virtual simultaneous interaction. The court found that no meeting occurred, however, the court stated that “how the email is used” is the dispositive consideration.

Florida Attorney General Opinion 08-07 The use of a website, blog or message board to solicit comment from other members of the board or commission by their response on matters that would come before the board would trigger the requirements of the Sunshine Law.

Wood v. Battle Ground Sch. Dist., 27 P.3d (2001) Email communications among a majority of the members of a school board in Washington constituted a meeting under the open meetings laws

District Attorney for the Northern Dist. v. School Committee of Wayland, 918 N.E. 2d 796 (2009) Where private email messages were exchanged among school committee members before a board meeting, a Massachusetts court found they circumvented the requirements of the open meetings laws by conducting deliberations.

Rangra v. Brown, 566 F.3d 515 (2009) A district attorney indicted a public official for violating the Texas Open Meeting Act by discussing public matters in emails with a quorum of members outside of an open meeting.

California Attorney General Opinion 84-30 >A majority of the board members of a local public agency may not e-mail each other to develop a collective concurrence as to action to be taken by the board without violating the open meetings act.

Social Media

Phonedog v. Kravitz (2011/2012/2013) PhoneDog, LLC, an “interactive mobile news and reviews resource,” filed suit against former employee Noah Kravitz for ownership of a Twitter account Kravitz used while he was employed by PhoneDog. As a product reviewer for PhoneDog, Kravitz was allegedly given use of a Twitter account with the handle @PhoneDog_Noah to promote PhoneDog’s services. PhoneDog claimed that after his employment ended, Kravitz changed the Twitter handle to @noahkravitz and continued use of the account, even though PhoneDog requested Kravitz relinquish use.

Bland v. Roberts (2012/2013) The complaint alleges that Sheriff B.J. Roberts fired employee Bobby Bland and others because they supported Sheriff Robert’s opposition, Jim Adams, who previously worked at the Sheriff’s Office for 16 years, though he had recently resigned in order to run against Roberts. The plaintiffs contend that Sheriff Roberts found out about their support of Adams through their online support of Adams’ Facebook page and one plaintiff “liking” Adams’ Facebook page.

Robinson v. Jones Lang LaSalle Americas (2012) Plaintiff claimed that workplace discrimination left her with emotional distress. The defendant sought any communication, including Facebook postings, referencing the plaintiff’s “work-related emotions.” The U.S. District Court of Oregon granted the request, stating that there was “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” As to how to determine what to produce, the court left that to the parties to sort out in “good faith.”

Mailhoit v. Home Depot Corp. (2012) Defendant, Home Depot, filed a motion to compel the plaintiff, Mailhoit, to produce social media information in accordance to four outstanding production requests. The court rejected (3 productions requests) and granted (1 production request) in part the defendant’s motion. The court justified its rejection in part due to the defendant’s failure to meet Rule 34(b)(1)(A)’s reasonably particularity requirement, meaning that three of the production requests were not “reasonably calculated” to lead to the discovery of admissible relevant evidence.

Florida Attorney General Opinion 09-19 Because the creation of a city Facebook page must be for a municipal, not private purpose, the placement of material on the city’s Facebook page would presumably be in furtherance of such purpose and in connection with the transaction of official business and thus subject to the provisions of Florida’s public records laws.

Value of RIM

Micron Tech v. Rambus Inc. (2002/2011) The plaintiff, patentee Micron Technology, Inc., sought a declaratory judgment against the defendant Rambus Inc. in that they were not infringing on the defendant’s patents on computer memory because they were invalid. One of the claims made in the case was that Rambus’ patent was unenforceable due to spoliation. While Rambus Inc. protested it had followed its document retention policy correctly, the court pointed out that they should have applied a legal hold to their records due to foreseeable litigation from Micron Technology, Inc. before the date the relevant records were destroyed.

Hynix Semiconductor Inc. v. Rambus Inc. (2006/2011) Plaintiff Hynix Semiconductor Inc. sought a declaratory judgment of non-infringement against the defendant Rambus Inc. in that they were not infringing on the defendant’s patents on computer memory when they became locked in to production. A spoliation claim was made by the plaintiff in that Rambus Inc. had destroyed relevant documents in preparation of its suit against Hynix rather than preserving such material for use as evidence in the foreseeable litigation. However, the court felt litigation was not foreseeable due to no likelihood contingencies were going to be resolved, litigation was imminent though not reasonably foreseeable, and the district court did not apply a legal hold on relevant documents until after Rambus’ second shred day. Hynix’s judgment was struck down.

Spanish Peaks Lodge v. Keybank National Assoc. (2012) Defendant Keybank National Association claimed that plaintiff Voyager Group, L.P. instituted a document retention policy for the sole and express purpose of destroying documents relevant to its litigation. As movant, KeyBank bears the burden of proof in establishing spoliation. The court felt KeyBank did not complete its duty of notifying Voyager Group about its anticipated litigation by providing notice of the probability they would become involved in litigation. KeyBank argued there were emails that suggested Voyager knew of the impending litigation, but the judge felt that since Voyager made no attempts to initiate litigation of their own against KeyBank, KeyBank should have established a legal hold between both parties. The judge found “that no duty to preserve evidence existed at the time the document retention policy was implemented and KeyBank has not met its burden in establishing that Voyager spoliated evidence.”

Margaret Benson v. Sanford Health (2009, 2011) US District Court, D. South Dakota, Southern Division – Plaintiff Dr. Benson requested copies of any emails held by defendant Sanford Health in June 2006 that related to her replacement by a male doctor. Sanford’s e-mail retention and document destruction policies provided that e-mails were destroyed on 90–day cycles, after which the e-mail may be retrieved from backup tapes for, at the longest, two months. The backup tapes were written over and not retrievable after that time. Thus, e-mails on Sanford’s computer network from June 2006 were not retrievable after December 2006. The only other way the emails could have existed were if someone had saved the e-mail in another fashion, like in printed paper or saved offline. Sanford Health indicated it would continue to search for such e-mails from June 2006 outside the email system. Benson argued Sanford had not done enough to look for her e-mail message, but she had not suggested what else Sanford could reasonably do that had not already been done. Benson had not supplied legal precedent to describe the lengths to which Sanford must go to find the 2006 e-mail. Sanford had searched for the e-mail all it can reasonably be expected to search.