December 2006 – Page 12 – Electronic Discovery Law

MBNA Am. Bank, N.A. v. Cioe & Wagenblast, P.C., 2006 WL 1408402 (N.D. Ind. May 19, 2006)

Dec 01 2006

Key Insight: Court denied motion to reconsider prior discovery ruling that MBNA was not entitled to production of responsive correspondence on diskette, stating that MBNA had remedies under the FRCP if defendants failed to produce legible paper copies as ordered in the prior ruling; court also flatly rejected any attempt by MBNA to obtain discovery through inspection of defendants’ computer hard drives

Nature of Case: Bank alleged firm had conducted “sham” arbitrations with bank’s cardholders

Electronic Data Involved: Word processing files

New World Sys. Corp. v. Jones, 2006 WL 1234901 (E.D. Mich. May 5, 2006)

Dec 01 2006

Key Insight: Court set hearing date for plaintiff’s motion for expedited discovery and granted in part and denied in part defendants’ motion for expedited discovery; plaintiff agreed to allow defense counsel access to laptop computer that individual defendant possessed while in the employ of plaintiff, for the purpose of making a mirror image of the hard drive for examination by a computer forensics expert hired by defendant; court allowed defense counsel 14 days after the hard drive was “mirrored” to conduct expedited discovery subject to confidentiality order agreed to by parties

Nature of Case: Misappropriation of trade secrets, violation of non-compete

Electronic Data Involved: Laptop computer

B & G Crane Serv., L.L.C. v. Duvic, 2006 WL 1194775 (La. Ct. App. May 5, 2006)

Dec 01 2006

Key Insight: Even lacking direct evidence that defendants continued to possess plaintiff?s computer disks and information (which had been seized by the Attorney General in related criminal investigation), trial court erred in denying preliminary injunction given evidence of defendants? knowing and willing participation in criminal, unethical and unscrupulous acts against plaintiff and possibility that information could have been downloaded to other computers, or printed, or handwritten and kept anywhere; trial court’s credibility determination in favor of defendants was abuse of discretion under the circumstances

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: CDs and computer disks

Pure-Flo MPC, LLC v. Bio Fab Techs., Inc., 2006 WL 1389115 (E.D. Wis. May 12, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion for accelerated discovery and immediate inspection and copying of defendants’ computers by computer forensic specialist designated by plaintiff, since plaintiff had not yet filed its preliminary injunction motion: ?The Court will not accelerate and expand discovery beyond the parameters annunciated in the Federal Rules of Civil Procedure so as to help the parties prepare for an evidentiary hearing that may never take place.?

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Email, confidential business information

Orbit Elecs., Inc. v. Helm Instrument Co., 2006 WL 1281038 (Ohio Ct. App. May 11, 2006)

Dec 01 2006

Key Insight: No abuse of discretion to deny defendant’s motion to compel production of complete copy of plaintiff’s QuickBooks system, where request was made on first day of jury trial and could have come before, plaintiff had already provided a considerable amount of documents to defendant in discovery, and defendant was unable to show that court acted arbitrarily in denying its motion or that information sought would have done anything to bolster its case

Nature of Case: Breach of contract, unjust enrichment, breach of loyalty and other claims

Electronic Data Involved: QuickBooks data

UMG Recordings, Inc. v. Does 1-4, 2006 WL 1343597 (N.D. Cal. Mar. 6, 2006)

Dec 01 2006

Key Insight: Finding good cause and no First Amendment prohibition, court granted plaintiffs? motion for leave to take immediate discovery and serve Rule 45 subpoena upon ISP to obtain names and contact information for Doe Defendants; ISP to serve copy of subpoena and court?s order upon relevant subscribers and subscribers would have 15 days to file any objections; if no objections filed, ISP would have 10 days to produce each subscriber’s name, address, telephone number, email address, and Media Access Control (?MAC?) addresses

Nature of Case: Copyright infringement

Electronic Data Involved: Names and contact information for ISP subscribers

Gavrilovic v. Worldwide Language Res., Inc., 2006 WL 1342839 (D.N.H. Apr. 18, 2006)

Dec 01 2006

Key Insight: Magistrate denied defendant’s motion for contempt order under Rule 45(e) for non-party’s alleged failure to comply with subpoena and court order, where non-party had produced roughly 3,500 pages of responsive documents, and reason for non-production of four particular emails (given to defendant by ex-employee of non-party) was because non-party did not have possession of and could not produce them since the computer and server that once contained them were no longer available to non-party

Nature of Case: Sex discrimination/harassment

Electronic Data Involved: Email

Global Compliance, Inc. v. Am. Labor Law Co., 2006 WL 1314171 (Cal. Ct. App. May 15, 2006) (Unpublished)

Dec 01 2006

Key Insight: Appellate court affirmed discovery sanctions imposed on two defendants for resisting production of electronic documents on CD, noting: “A CD is simply a copy of the electronic data on the computer. Just as photocopying is proper for copying a document in paper form, downloading computer files onto a CD is an appropriate means for copying the electronic data on a computer’s hard drive.”

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: CD-ROMs containing electronic documents

Nichani v. United Tech. Corp., 2006 WL 1102761 (D. Conn. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel production of all documents prepared by four trial witnesses regarding accident investigation, as well as all email between or among them regarding the same matter, where discovery was closed and plaintiff had long known that four witnesses had potentially relevant information and plaintiff never followed up on general production requests nor sought discovery from witnesses directly; court further denied plaintiff’s alternative motion in limine precluding testimony of four individuals

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Employers Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., 2006 WL 1120632 (E.D.N.Y. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court found that the computerized claim file was clearly relevant, irrespective of whether plaintiffs intended to use the documents or not in the litigation, and ordered plaintiffs to produce the complete claim file, including hard copies and electronic documents, to the extent such documents were not privileged or prepared for the sole purpose of “probable” or “imminent” litigation

Nature of Case: Insurance coverage

Electronic Data Involved: Electronic claim file

Archive - December 2006