December 2004 – Page 19 – Electronic Discovery Law

Promega Corp. v. Applera Corp., 2002 WL 32340886 (W.D. Wis. Nov. 27, 2002)

Dec 01 2004

Key Insight: After plaintiffs objected to production of sales database because it was not organized to its liking, and defendants produced two further iterations in an attempt to respond to plaintiffs’ complaints, court denied plaintiff’s motion to compel production of “complete and accurate” database since court “was not convinced that defendants have failed to produce this information, even if it is not in the ideal format plaintiff desires”

Nature of Case: Patent infringement

Electronic Data Involved: Sales database

Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D. Utah 1998)

Dec 01 2004

Key Insight: Plaintiff sanctioned $10,000 for failing to preserve or search email of certain persons; key word search to be narrowed

Nature of Case: Business sued competitors for defamation and unfair competition

Electronic Data Involved: Email, databases (scope of key word search)

Premier Homes & Land Corp. v. Cheswell, Inc., 240 F. Supp. 2d 97 (D. Mass. 2002)

Dec 01 2004

Key Insight: In related action, court granted defendant’s ex parte application to allow its consultants to create mirror images of plaintiff’s computer hard drives, backup tapes and other storage media, in light of allegation that critical document and email were fabricated; after granting unopposed motion to dismiss, court awarded defendant $24,845.99 in fees and costs, including computer consultant fees of $5,650

Nature of Case: Alleged breach of lease agreement

Electronic Data Involved: Hard drives and other storage devices

Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F. Supp. 2d 561 (N.D. Tex. 2003)

Dec 01 2004

Key Insight: Court entered preservation order requiring preservation of all extant backups or images of all servers or personal computers containing disputed software or email; court denied motion to compel imaging of all media potentially containing software or electronic evidence relevant to the claims in the suit, and all images of defendants’ computer storage facilities, drives and servers taken to date, as substantially overbroad

Nature of Case: Copyright infringement

Electronic Data Involved: Backups and images of servers, software and email

Positive Software Solutions, Inc. v. New Century Mortgage Corp., 337 F. Supp. 2d 862 (N.D. Tex. 2004)

Dec 01 2004

Key Insight: Court ruled, reluctantly, that even though defendant had violated protective order relating to use of subject software and database, the order was not sufficiently clear and definite to be enforced by contempt

Nature of Case: Copyright infringement

Electronic Data Involved: Software and database

Portis v. City of Chicago, 2004 WL 2812084 (N.D. Ill. Dec. 7, 2004)

Dec 01 2004

Key Insight: Court clarified its July 7, 2004 order and explained how it intended the costs of compiling the database would be calculated: the number of hours plaintiffs’ computer expert and the paralegals spent on the project, multiplied by their respective hourly billing rates, plus other costs, if any; court quashed defendants’ discovery requests seeking information regarding the salaries paid to computer expert and the paralegals

Nature of Case: Class action for civil rights violations

Electronic Data Involved: Database compiled at direction of plaintiffs’ attorneys

Portis v. City of Chicago, 2004 WL 1535854 (N.D. Ill. July 7, 2004)

Dec 01 2004

Key Insight: Court granted motion to compel access to database constituting fact work product, where requesting party demonstrated (1) substantial need for the information and (2) undue hardship were it required to compile a similar database from scratch; however, requesting party would have to contribute its fair share toward the expenses incurred in compiling the database

Nature of Case: Class action for civil rights violations

Electronic Data Involved: Database compiled at direction of plaintiffs’ attorneys

In re Plastics Additives Antitrust Litig., 2004 WL 2743591 (E.D. Pa. Nov. 29, 2004)

Dec 01 2004

Key Insight: Sustaining defendants’ objections to plaintiff’s proposed scheduling order, court imposed reciprocal burdens on parties to produce transactional data in electronic format, to the extent reasonably feasible, but removed provision that had required defendants to make available “documentation and computer personnel” to help plaintiffs understand that data, stating parties were free to agree to such a provision but the court would not impose one

Nature of Case: Antitrust

Electronic Data Involved: Transactional data

Pioneer Hi-Bred Int’l, Inc. v. Monsanto Co., 2001 WL 170410 (E.D. Mo. Jan. 2, 2001)

Dec 01 2004

Key Insight: After jury trial resulted in defense verdict, court ruled on defendant’s outstanding motion for sanctions; pursuant to Fed. R. Civ. P. 37 and its inherent authority, court ordered plaintiff to pay defendant’s total counsel fees, expenses and costs incurred in the litigation (not just those related to discovery issues) amounting to $8,211,287 as sanction for plaintiff’s egregious discovery misconduct

Nature of Case: Dispute over development and license agreement

Electronic Data Involved: Email and other computerized data

Physicians Interactive v. Lathian Systems, Inc., 2003 WL 23018270 (E.D. Va. Dec. 5, 2003)

Dec 01 2004

Key Insight: Court allowed limited expedited discovery to enter and obtain mirror images of defendants’ computer equipment containing electronic data relating to alleged hacking attacks on plaintiff’s server; discovery was limited to information related to alleged attacks, and assistance of computer forensic expert was required

Nature of Case: Misappropriation of trade secrets and related torts

Electronic Data Involved: Evidence of computer hacking

Archive - December 2004