December 1, 2004 – Page 15 – Electronic Discovery Law

In re Lowe’s Companies, Inc., 134 S.W.3d 876 (Tex. App. 2004)

Dec 01 2004

Key Insight: Trial court’s order requiring witness to bring with her a computer or have access at the time of her deposition to a computer capable of logging onto the database and capable of searching, sorting and printing the data on the computer as requested by plaintiff’s counsel in the deposition was overbroad and vacated; however, witness would be required to testify about database since defendant had failed to establish that database was a trade secret

Nature of Case: Personal injury from falling merchandise

Electronic Data Involved: Database re accidents and injuries occurring at Lowe’s stores

Long Term Capital Holdings v. United States, 2003 WL 21518555 (D. Conn. May 15, 2003)

Dec 01 2004

Key Insight: Court denied government’s motion to compel production of opposing party’s rebuttal expert’s proprietary database since rebuttal expert report complied with Fed. R. Civ. P. 26(a)(2)(B) and no further disclosures were warranted

Nature of Case: Taxpayer petition for readjustment

Electronic Data Involved: Proprietary database maintained by taxpayer’s rebuttal expert

Long Island Diagnostic Imaging, P.C. v. Stony Brook Diagnostic Assoc., 728 N.Y.S.2d 781 (N.Y. App. Div. 2001)

Dec 01 2004

Key Insight: Trial court erred in not dismissing defendants’ counterclaim and third party complaint as sanction for spoliation of evidence — contrary to court’s orders, defendants purged databases and produced backup tapes that were compromised and unusable

Nature of Case: Plaintiff sought declaratory judgment that it was not in default of license agreement

Electronic Data Involved: Computer databases and backup tapes

In re Livent, Inc. Noteholders Sec. Litig., 2003 WL 23254 (S.D.N.Y. Jan. 2, 2003)

Dec 01 2004

Key Insight: After defendant accounting firm produced only 25 pages of email from one custodian plus 14 emails from other employees, and plaintiffs voiced suspicions that production was incomplete, court directed defendant to fax to plaintiffs a written explanation of all the steps taken to find responsive emails; as to any further steps, court directed parties to read Magistrate Judge Francis’ opinion in Rowe Entertainment, then meet and confer re eight Rowe factors

Nature of Case: Securities litigation

Electronic Data Involved: Email

Lipco Elec. Corp. v. ASG Consulting Corp., 2004 WL 1949062 (N.Y. Sup. Ct. Aug. 18, 2004) (Unpublished)

Dec 01 2004

Key Insight: Noting differences between federal law and New York law regarding cost-shifting in discovery, court stated it did not have sufficient information about the costs associated with the requested discovery, but concluded that until plaintiffs indicated a willingness to pay for the requested electronic discovery (whatever its cost), court would not order its production

Nature of Case: Claims based on breach of contract and for an accounting

Electronic Data Involved: Computer data

Lexis-Nexis v. Beer, 41 F. Supp. 2d 950 (D. Minn. 1999)

Dec 01 2004

Key Insight: Court granted motion for monetary sanctions against defendant for violating TRO by failing to return proprietary information and data to plaintiff, but reserved judgment on amount of award pending further proceedings

Nature of Case: Employer sued former employee for misappropriation of trade secrets and related torts

Electronic Data Involved: Database containing sales and customer information, email, laptop, zip disk

In re Lernout & Hauspie Sec. Litig., 222 F.R.D. 29 (D. Mass. 2004)

Dec 01 2004

Key Insight: Finding that the production of privileged email was not inadvertent, court held that accounting firm waived attorney-client privilege as to disclosed email, and as to 15 other emails on same subject matter

Nature of Case: Securities class action

Electronic Data Involved: Email

Laurin v. Pokoik, 2004 WL 2724767 (S.D.N.Y. Nov. 30, 2004)

Dec 01 2004

Key Insight: Where plaintiff sought “any document which would evidence the true date when [a particular] entry was actually entered into the computer system,” court ruled that if plaintiff wishes to retain a forensic computer expert at her own expense, she may seek an order that defendant permit the expert to inspect the computer system

Nature of Case: Wrongful termination

Electronic Data Involved: Date of particular data entry in computer system

Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003)

Dec 01 2004

Key Insight: EPA violated preliminary injunction that prohibited destruction of potentially responsive documents by reformatting hard drives and erasing or overwriting backup tapes containing potentially responsive email; EPA held in civil contempt and ordered to pay plaintiff’s reasonable attorneys’ fees incurred as a result of EPA’s contumacious conduct

Nature of Case: FOIA action

Electronic Data Involved: Hard drives and email stored on backup tapes

Lakewood Eng’g & Mfg. Co. v. Lasko Prods., Inc., 2003 WL 1220254 (N.D. Ill. Mar. 14, 2003)

Dec 01 2004

Key Insight: Although plaintiff’s production of relevant email and other documents in electronic form after the close of discovery demonstrated lack of good faith effort to produce all requested discovery in timely manner, sanctions were not warranted

Nature of Case: Patent infringement

Electronic Data Involved: Email and other documents in electronic form

Archive - December 1, 2004