December 2004 – Page 15 – Electronic Discovery Law

Toftely v. Qwest Communications Corp., 2003 WL 1908022 (Minn. Ct. App. Apr. 22, 2003) (Unpublished)

Dec 01 2004

Key Insight: Qwest general counsel sent urgent/confidential email to managers notifying them of “legal hold” related to pending SEC investigation and advising about the need to preserve certain categories of documents. The email contained a hidden “tracer” that gave notice whenever someone forwarded the email outside the Qwest network. Qwest discharged all employees who forwarded the email to outsiders on grounds of employment misconduct; subsequent denial of unemployment benefits was affirmed.

Nature of Case: Discharged employee appealed denial of unemployment benefits

Electronic Data Involved: Email containing tracer

Timpken Co. v. United States, 659 F. Supp. 239 (Ct. Int’l Trade 1987)

Dec 01 2004

Key Insight: Defendant ordered to provide copies of computer tapes containing data previously provided in hard copy form

Nature of Case: Challenge of decision by Dept. of Commerce to deny plaintiff access to computer tapes in trade investigation

Electronic Data Involved: Computer tapes containing costs and sales data

Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)

Dec 01 2004

Key Insight: Email stored in government computers does not automatically become public records by virtue of that storage; private or personal email fell outside the statutory definition of “public records”

Nature of Case: Newspaper sued city to release as public record all email sent from or received by two city employees

Electronic Data Involved: Email

3M v. Pribyl, 259 F.3d 587, 606 n.5 (7th Cir. 2001)

Dec 01 2004

Key Insight: Negative inference instruction warranted where six gigabytes of music were downloaded onto hard drive the night before the computer was to be turned over for inspection

Nature of Case: Manufacturer sued former employees and their new competing company for misappropriation of trade secrets

Electronic Data Involved: Hard drive

Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), amending 341 F.3d 978 (9th Cir. 2003), cert. denied, 543 U.S. 813 (2004)

Dec 01 2004

Key Insight: Defendant’s subpoena to ISP of plaintiff, which sought all copies of all email sent or received by anyone at plaintiff with no limitation as to time or scope, was “massively overbroad,” “patently unlawful,” and “transparently and egregiously” violated federal rules; besides warranting sanctions in underlying suit, subpoena was grounds for separate action by employees of plaintiff against defendant for violation of federal Stored Communications Act and Computer Fraud and Abuse Act, and state law

Nature of Case: Violation of federal electronic privacy and computer fraud statutes

Electronic Data Involved: Email stored by Internet Service Provider

Tempco Elec. Heater Corp. v. Temperature Eng’g Co., 2004 WL 1254134 (N.D. Ill. June 3, 2004)

Dec 01 2004

Key Insight: Since plaintiff elected not to conduct its own inspection of defendant’s hard drives, it could not avoid summary judgment on misappropriation of trade secrets claim by merely speculating about the presence of trade secret material on defendant’s computers, when defendant?s (admittedly cursory) inspection turned up no trade secret material

Nature of Case: Trademark infringement, misappropriation of trade secrets, contract breach

Electronic Data Involved: Hard drives

Symantec Corp. v. McAfee Assoc., Inc., 1998 WL 740807 (N.D. Cal. Aug. 14, 1998)

Dec 01 2004

Key Insight: Plaintiff’s motion to modify scheduling order to allow additional electronic discovery (production of all source code and image copies of all hard drives with access to a server from which a particular disk was copied) denied because plaintiff failed to exercise reasonable diligence — it had possession of the disputed disk for over nine months before it examined the disk and appreciated its significance

Nature of Case: Copyright infringement

Electronic Data Involved: Source code, image copies of hard drives

Symantec Corp. v. McAfee Assoc., Inc., 1998 WL 740798 (N.D. Cal. June 9, 1998)

Dec 01 2004

Key Insight: Where defendants admitted to removing customer sales information from sales representatives’ computers by means of “delete and scrub” utilities in response to plaintiff’s claim that such material constituted trade secrets, and retained copies of deleted information, court granted unopposed motion for preliminary injunction enjoining defendant from distributing customer sales information and recalling and impounding customer sales information database

Nature of Case: Copyright infringement; plaintiff also alleged that defendant obtained private customer sales information from plaintiff’s former sales representative

Electronic Data Involved: Database containing customer sales information

Superior Consultant Co. v. Bailey, 2000 WL 1279161 (E.D. Mich. Aug. 22, 2000)

Dec 01 2004

Key Insight: Reference to previously entered TRO, ordering, among other things, that the parties neither destroy, alter, modify nor conceal any relevant data, including data stored on computer media, that defendants create and thereafter produce to defense counsel a backup file of defendant Bailey’s laptop computer, and a backup file of any personal computer hard-drive to which defendant Bailey has had access at any time, and that defendants produce a redacted copy of these hard-drive backup files to plaintiff’s counsel within three days after entry of the TRO; subsequent preliminary injunction included similar provisions

Nature of Case: Employer sued former employee for breach of employment contract, tortious interference, misappropriation of trade secrets

Electronic Data Involved: Databases containing sales and customer information

Stricklen v. Fed. Aviation Admin., 32 F.3d 572 (Table, Text in WESTLAW), 1994 WL 390001 (9th Cir. 1994) (Unpublished)

Dec 01 2004

Key Insight: Negative inference not warranted in NTSB board proceeding where computer tapes containing radar data were destroyed pursuant to FAA policy and without notice that pilot would raise issue of near-miss

Nature of Case: Petition for review of order of NTSB revoking pilot’s airline transport certificate

Electronic Data Involved: Tapes containing radar data

Archive - December 2004