December 1, 2004 – Page 14 – Electronic Discovery Law

Metro. Opera Ass?n, Inc. v. Local 100, 2004 WL 1943099 (S.D.N.Y. Aug. 27, 2004)

Dec 01 2004

Key Insight: On defendant’s motion for reconsideration, court again described numerous discovery failings by the defendants, concluded that it would adhere to its prior decision at 212 F.R.D. 178, and further rejected two new arguments belatedly advanced by defendant relating the merits of plaintiff’s underlying claims

Nature of Case: Opera company sued union

Electronic Data Involved: Email and electronic documents; hard drives

In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 2004 WL 305601 (S.D.N.Y Feb. 18, 2004)

Dec 01 2004

Key Insight: Where defendants avowed that they were aware of their obligations and have taken and are continuing to take all necessary steps to preserve all potentially relevant electronic evidence, court determined there was no “imminent risk” that any deleted data would be overwritten and rendered irretrievable, and denied plaintiffs’ motion for order lifting automatic stay on discovery for purpose of preserving and restoring deleted email

Nature of Case: Securities class action

Electronic Data Involved: Email allegedly deleted by individual defendant and his subordinates

Medtronic Sofamor Danek, Inc. v. Michelson, 2004 WL 2905399 (W.D. Tenn. May 3, 2004)

Dec 01 2004

Key Insight: Declining to determine whether its May 13, 2003 order contemplated the production of deleted files, court overruled defendant’s objections to special master’s order denying request for production of deleted files, finding that defendant’s request was untimely and that “the process of recovering deleted files at this late stage of litigation would be an undue burden on Medtronic and is based, the court’s opinion, on mere speculation that relevant deleted files could be recovered”

Nature of Case: Intellectual property litigation

Electronic Data Involved: Deleted files

Med. Billing Consultants, Inc. v. Intelligent Med. Objects, Inc., 2003 WL 1809465 (N.D. Ill. Apr. 4, 2003)

Dec 01 2004

Key Insight: Court denied plaintiff’s motion to compel defendants to allow experts to perform physical inspection of their computer equipment and files, since full disclosure of email had been provided by defendants and inspection was likely to be unduly burdensome

Nature of Case: Copyright infringement

Electronic Data Involved: Defendant’s computer equipment and files

McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 2001 WL 536974 (10th Cir. May 21, 2001)

Dec 01 2004

Key Insight: Defendant’s skepticism that plaintiff had not produced copies of all responsive documents did not entitle defendant to conduct physical inspection of plaintiff’s hard drives

Nature of Case: Breach of contract and quantum meruit claim

Electronic Data Involved: Computer and disc drives

Mathias v. Jacobs, 197 F.R.D. 29 (S.D.N.Y. 2000), vacated, 167 F. Supp. 2d 606 (S.D.N.Y. 2001)

Dec 01 2004

Key Insight: Plaintiff’s failure to preserve computer printouts and telephone lists loaded onto Palm Pilot did not warrant an adverse inference instruction, but did warrant monetary sanctions of $28,271.75 to be paid by party (not his attorney) to compensate the victim for attorneys’ fees and expenses arising both from additional discovery required to locate equivalent information by alternative means and from the motion practice necessitated by the spoliation

Nature of Case: Action seeking monetary damages and specific performance of stock option agreement

Electronic Data Involved: Hard copy material loaded onto Palm Pilot

MasterCard Int’l v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004)

Dec 01 2004

Key Insight: Finding no bad faith in defendant’s failure to preserve email since defendants simply persevered in their normal document retention practices, court nonetheless ruled that plaintiff would be allowed to prove the facts reflecting the non-retention of email and argue to the trier of fact that this destruction of evidence, in addition to other proof offered at trial, warranted certain inferences

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Marcin Eng’g, LLC v. Founders at Grizzly Ranch LLC, 219 F.R.D. 516 (D. Colo. 2003)

Dec 01 2004

Key Insight: Court denied defendant’s motion to extend expert discovery deadline for purposes of reviewing plaintiff’s experts computer data and computerized versions of preliminary and superseded versions of work, where material was produced in hard copy form months earlier and defendant had been dilatory in reviewing it

Nature of Case: Breach of contract and tort claims

Electronic Data Involved: Computerized data and superceded and preliminary drafts of expert

Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)

Dec 01 2004

Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it

Nature of Case: Drug products liability

Electronic Data Involved: Discoverable information in paper or electronic format

Lytle v. Ford Motor Co., 2003 WL 23855089 (Ind. Cir. Ct. Apr. 19, 2003) (Unpublished)

Dec 01 2004

Key Insight: Court denied plaintiff’s request “to go into Ford’s databases and look for any relevant information that might be there,” finding the request for production to be overbroad and unduly burdensome

Nature of Case: Product liability

Electronic Data Involved: Databases

Archive - December 1, 2004