2004 – Page 14 – Electronic Discovery Law

United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003)

Dec 01 2004

Key Insight: Court ruled that no work product waiver occurred when entire computer network account of USAO paralegal was inadvertently copied onto working copy of hard drive held by prosecution as evidence and made available to defense; defense motion to retain privileged documents denied

Nature of Case: Criminal charges of conspiracy, bank fraud, wire fraud and securities fraud

Electronic Data Involved: Privileged documents on computer hard drive

United States v. Philip Morris USA Inc., 327 F. Supp. 2d 21 (D.D.C. 2004)

Dec 01 2004

Key Insight: Finding it “astounding” that defendant’s employees failed to follow court’s preservation order and defendant’s own document retention policies, court rejected plaintiff’s request for adverse inference but imposed monetary sanction of $2,750,000 and barred testimony from at least 11 witnesses who failed to comply with defendant’s own internal document retention program

Nature of Case: Tobacco litigation

Electronic Data Involved: Email

United States v. Koch Ind., Inc., 197 F.R.D. 463 (N.D. Okl. 1998)

Dec 01 2004

Key Insight: Defendant was negligent in failing to determine which computer tapes in tape library contained information relevant to imminent and ongoing litigation and in failing to communicate clear guidelines regarding preservation of information to data processing personnel and tape librarian; no adverse inference, but plaintiff could inform jury about destruction of tapes and impact on plaintiff’s proof

Nature of Case: Action under False Claims Act

Electronic Data Involved: Computer tapes

United States v. Keystone Sanitation Co., 885 F. Supp. 672 (M.D. Pa. 1994)

Dec 01 2004

Key Insight: Inadvertent disclosure of defense attorney’s emails regarding defendants’ disposition of assets in context of massive production constituted subject matter waiver of attorney-client privilege because precautions taken to avoid such disclosure were not reasonable, defendants ordered to produce unredacted attorney billing memoranda relating to issue

Nature of Case: Environmental litigation

Electronic Data Involved: Email

United States v. IBM, 76 F.R.D. 97 (S.D.N.Y. 1977)

Dec 01 2004

Key Insight: Defendant required to produce computerized information; conduct of defendant and technical and complex nature of production warranted appointment of examiner pursuant to Fed. R. Civ. P. 53 to report to the court what materials the defendant possesses and whether defendant produced such material

Nature of Case: Antitrust

Electronic Data Involved: Tapes, files, programs, reports, input and output files

Uniroyal Chem. Co. Inc. v. Syngenta Crop Protection, 224 F.R.D. 53 (D. Conn. 2004)

Dec 01 2004

Key Insight: Where plaintiff demonstrated that allowing defendant unrestricted access to database would result in a clearly defined and serious injury, court held that plaintiff’s “confidential – attorneys’ eyes only” designation was appropriate and denied motion to compel

Nature of Case: Contract dispute

Electronic Data Involved: Database containing research data

Uncle Henry’s Inc. v. Plaut Consulting, Inc., 2002 WL 31833139 (D. Me. Dec. 17, 2002)

Dec 01 2004

Key Insight: Court rejected plaintiff’s motion to reconsider recommended decision on summary judgment and motion to supplement the record with additional electronic materials (including email) obtained from belatedly produced zip disk, since plaintiff failed to seek a continuance under Rule 56(f) and proffer came two months after receipt of electronic media and was therefore tardy

Nature of Case: Contract dispute

Electronic Data Involved: Electronic documents and email stored on “zip” disk

In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000)

Dec 01 2004

Key Insight: Plaintiffs allowed to serve appropriately-worded subpoenas on certain third parties for limited purpose of giving notice of action and placing them under duty to preserve relevant evidence

Nature of Case: Securities fraud

Electronic Data Involved: Unspecified electronic data of third parties

TPS, Inc. v. U.S. Dept. of Defense, 330 F.3d 1191 (9th Cir. 2003)

Dec 01 2004

Key Insight: Reversing summary judgment for DOD, court stated that relevant inquiry as to whether an agency must provide information in requested format is whether, in general, a requested format is one that is “readily reproducible” by the agency, benchmarked against the agency’s “normal business as usual approach” with respect to reproducing data in the ordinary course of the agency’s business (not limited solely to the context of FOIA requests)

Nature of Case: FOIA action

Electronic Data Involved: Two electronic files in “zipped” format

Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio 1996)

Dec 01 2004

Key Insight: Requiring insurer to create programs to retrieve and put in usable form information from its databases at its own expense, court stated: “[A] party cannot avoid discovery when its own recordkeeping system makes discovery burdensome. If a party chooses to store information in a manner that tends to conceal rather than reveal, that party bears the burden of putting the information in a format useable by others.” However, court did order that request for computer-generated reports be narrowed.

Nature of Case: Minority homeowners brought civil rights action alleging that insurer engaged in redlining to avoid minority neighborhoods

Electronic Data Involved: Insurer’s databases and computer-generated reports

Archive - 2004