Key Insight: Court imposed sanctions against city in the form of a rebuttable adverse inference, and fees and costs related to the discovery dispute, based upon city’s grossly negligent failure to institute litigation hold and consequent destruction of relevant hard copy documents
Nature of Case: Breach of contract, negligent misrepresentation
Electronic Data Involved: Email printouts and other hard copy documents
Key Insight: Court denied John Doe’s motion for protective order preventing internet service provider from disclosing his identity, finding that (1) plaintiffs had, in good faith, alleged that John Doe had used the internet as a tool for defamation, (2) the identifying information sought was directly and materially related to thir claim, and (3) the information could not be obtained from any other source
Nature of Case: Elected town council member and wife sued anonymous user of an internet “blog” who posted defamatory statements about plaintiffs on blog
Electronic Data Involved: Blog posting
Key Insight: Court denied individual defendant’s motion for reconsideration of default judgment entered against her and other defendants for continued destruction of evidence and continued possession of plaintiff’s proprietary files; although there was no evidence that individual defendant personally engaged in wrongful acts, she was not insulated by simply leaving compliance with court orders to other defendant; further, individual had numerous opportunities to disavow knowledge of misconduct or detail what efforts she personally took to comply with court orders but never did so
Nature of Case: Misapproriation of trade secrets and related torts
Electronic Data Involved: Proprietary information in electronic form
Key Insight: Where insurer, in course of attempting to comply with discovery order, realized it had no electronic mechanism to retrieve case files based on whether a class was certified, but it could sort files by amount expended, court modified discovery order because it would have inflicted a substantial burden upon the insurer and the information produced would almost certainly be irrelevant
Nature of Case: Park operator alleged insurer failed to provide adequate counsel to defend a class action discrimination suit
Electronic Data Involved: Case file data
Key Insight: Request for production of “computer hard drive” was overly broad and responding party need not produce entire hard drive; however, to the extent that hard drive contained non-privileged items that were responsive to other requests as to which responding party’s objections were not sustained, such items should be produced
Nature of Case: Insurance coverage and unauthorized settlement
Electronic Data Involved: Hard drive
Key Insight: Finding that individual had stated cognizable defamation claim against anonymous author of offending email, court denied email author?s application to vacate order requiring internet service provider to disclose email account information
Nature of Case: Defamation claim based on offending email message
Electronic Data Involved: Email author identity
Key Insight: Ninth circuit granted writ of mandamus reversing district court’s order compelling plaintiffs to produce their answers to law firm’s internet questionnaire; although questionnaire disclaimed any formation of an attorney-client relationship, it did not disclaim confidentiality, and, under California law, prospective clients’ communications with a view to obtaining legal services were covered by the attorney-client privilege
Nature of Case: Users of antidepressant sued manufacturer of drug
Electronic Data Involved: Law firm’s questionnaires regarding drug which were completed and submitted to the law firm on the internet
Key Insight: Email between paralegal for U.S. Attorney’s Office and medical expert constituted work product, and inadvertent disclosure of email did not waive work product immunity under Ninth Circuit’s five-factor test, which balances: (1) the reasonableness of precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness
Nature of Case: Medical malpractice
Electronic Data Involved: Email
Key Insight: Inadvertent disclosure of government’s privileged litigation report by copying report onto CD-ROMs produced to over 50 defense attorneys did not effect waiver of attorney-client privilege where (1) government took reasonable precautions to prevent inadvertent disclosure by segregating privileged documents in extensive privilege review of more than 61,000 pages, (2) only one privileged document was inadvertently produced, (3) government acted promptly by alerting all counsel of inadvertent production within one month after learning of the disclosure, and (4) the interest of justice favored relieving the government of its error
Nature of Case: Environmental litigation
Electronic Data Involved: CD-ROM
Key Insight: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee
Nature of Case: Divorce proceeding
Electronic Data Involved: Data on hard drives
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