2004 – Page 22 – Electronic Discovery Law

MasterCard Int’l v. Moulton, 2004 WL 1393992 (S.D.N.Y. June 22, 2004)

Dec 01 2004

Key Insight: Finding no bad faith in defendant’s failure to preserve email since defendants simply persevered in their normal document retention practices, court nonetheless ruled that plaintiff would be allowed to prove the facts reflecting the non-retention of email and argue to the trier of fact that this destruction of evidence, in addition to other proof offered at trial, warranted certain inferences

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Marcin Eng’g, LLC v. Founders at Grizzly Ranch LLC, 219 F.R.D. 516 (D. Colo. 2003)

Dec 01 2004

Key Insight: Court denied defendant’s motion to extend expert discovery deadline for purposes of reviewing plaintiff’s experts computer data and computerized versions of preliminary and superseded versions of work, where material was produced in hard copy form months earlier and defendant had been dilatory in reviewing it

Nature of Case: Breach of contract and tort claims

Electronic Data Involved: Computerized data and superceded and preliminary drafts of expert

Madden v. Wyeth, 2003 WL 21443404 (N.D. Tex. Apr. 16, 2003)

Dec 01 2004

Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it

Nature of Case: Drug products liability

Electronic Data Involved: Discoverable information in paper or electronic format

Lytle v. Ford Motor Co., 2003 WL 23855089 (Ind. Cir. Ct. Apr. 19, 2003) (Unpublished)

Dec 01 2004

Key Insight: Court denied plaintiff’s request “to go into Ford’s databases and look for any relevant information that might be there,” finding the request for production to be overbroad and unduly burdensome

Nature of Case: Product liability

Electronic Data Involved: Databases

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

Archive - 2004