December 1, 2004 – Page 19 – Electronic Discovery Law

Glover v. Standard Fed. Bank, 2001 WL 34635710 (D. Minn. Nov. 9, 2001)

Dec 01 2004

Key Insight: Where evidence showed there was no feasible and economic electronic means by which certain data could be produced, court ruled that, to the extent defendants intended to introduce evidence related to such data at trial, defendants would be required to produce all such evidence, documentary, electronic or otherwise, upon which they intend to rely

Nature of Case: Class action

Electronic Data Involved: Information regarding damages, offsets and class member eligibility

Giardina v. Lockheed Martin Corp., 2003 WL 1338826 (E.D. La. Mar. 14, 2003)

Dec 01 2004

Key Insight: Magistrate’s order granting plaintiff’s motion to compel discovery and awarding attorneys’ fees upheld; employer required to provide available data and also respond by stating the steps taken to obtain non-work related internet sites accessed during the dates requested, including detailed explanation of efforts to obtain information and reasons its efforts were not successful if it was unable to obtain the data to fully respond to interrogatory

Nature of Case: Employment discrimination

Electronic Data Involved: Information re all non-work related internet sites accessed on certain of employer’s computers during relevant period

Georgia Emission Testing Co. v. Reheis, 602 S.E.2d 153 (Ga. Ct. App. 2004)

Dec 01 2004

Key Insight: Trial court abused its discretion in ordering parties to share costs of requested discovery equally, and should have ordered the requesting party to bear full cost where requested information should have been available in the requesting party?s own records, and the request involved the creation of a report that otherwise did not exist, and had to be specially created by a nonparty contractor at significant cost

Nature of Case: Suit to recover fees improperly assessed pursuant to Motor Vehicle Emission Inspection and Maintenance Act

Electronic Data Involved: Special report extracted from massive database of information

Gambale v. Deutsche Bank Ag, 2002 WL 31655326 (S.D.N.Y. Nov. 21, 2002)

Dec 01 2004

Key Insight: Defendants ordered to provide an affidavit explaining steps taken to search paper and electronic files for responsive documents and feasibility and cost of retrieving certain emails. Plaintiff would then have option of consenting to protocol set forth in Rowe Entertainment as modified by Murphy Oil, or arguing for different protocol by conferring with defendant and submitting a joint letter outlining parties’ respective positions on the issue

Nature of Case: Gender discrimination

Electronic Data Involved: Email and electronic files

In re Gabapentin Patent Litig., 214 F.R.D. 178 (D.N.J. 2003)

Dec 01 2004

Key Insight: Forwarding or copying email or other documents that are prepared by non-lawyers for business purposes to a lawyer does not transform such email or documents into work product

Nature of Case: Patent infringement

Electronic Data Involved: Email

Fresenius Med. Care Holding Inc. v. Baxter Int’l, Inc., 224 F.R.D. 644 (N.D. Cal. 2004)

Dec 01 2004

Key Insight: Magistrate found good cause to grant motion to compel where deponent identified source code in deposition which had not been produced; court ordered defendant to produce sworn declaration setting forth the specific efforts it made to locate responsive documents and either a certification that all documents have been produced, or an explanation of why the documents have not yet been produced

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Fischbach v. Trustees of Cal. State Univ., 2004 WL 179471 (Cal. Ct. App. Jan. 31, 2004) (Unpublished)

Dec 01 2004

Key Insight: Email discovered and produced after court granted summary judgment for defense and notice of appeal was filed constituted new evidence; appellate court granted writ of coram vobis, reversed and directed the trial court to deny defendants’ motion for summary judgment without prejudice to their renewing the motion after plaintiff had opportunity to conduct further discovery regarding email

Nature of Case: Defamation and invasion of privacy

Electronic Data Involved: Belatedly produced email found on key player’s hard drive

First USA Bank, N.A. v. Paypal, Inc., 76 Fed.Appx. 935, 2003 WL 22071558 (Fed. Cir. Aug. 21, 2003)

Dec 01 2004

Key Insight: Former CEO of defendant subpoenaed and ordered to appear for deposition and produce his laptop computer for forensic inspection pursuant to court’s approved search protocol; CEO’s appeal of the nonfinal interlocutory order was dismissed

Nature of Case: Patent infringement

Electronic Data Involved: Laptop

First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993)

Dec 01 2004

Key Insight: Ex parte order permitting plaintiff and its counsel, with U.S. Marshal, to enter defendants’ business premises and inventory and impound computer records and copy and inventory business records was abuse of discretion

Nature of Case: Crash test dummy manufacturer sued competitor for unfair competition, copyright infringement, misappropriation of trade secrets and related torts

Electronic Data Involved: Computer programs and printouts

Felham Enter. (Cayman) Ltd. v. Certain Underwriters at Lloyd’s, 2004 WL 2360159 (E.D. La. Oct. 19, 2004)

Dec 01 2004

Key Insight: Where defendant did not timely object to document requests and belated privilege log was inadequate, court determined that attorney-client privilege and work product protection had been waived and ordered production

Nature of Case: Insurance coverage

Electronic Data Involved: Insurer’s computerized “Z-note” file contents related to particular claim

Archive - December 1, 2004