December 2006 – Page 6 – Electronic Discovery Law

Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL 3290402 (N.D. Cal. Nov. 13, 2006)

Dec 01 2006

Key Insight: Where defendant had not previously understood that its obligation to search for responsive documents extended to email accounts, but counsel had taken steps to rectify the situation, court denied plaintiff?s demand that defendant be compelled to produce an affidavit describing its document search and collection processes, and instead ordered defendant to provide a verified statement signed by a responsible corporate official that defendant made a good faith search for responsive material and that all responsive, non-privileged documents were produced

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 3371576 (N.D. Cal. Nov. 21, 2006)

Dec 01 2006

Key Insight: Where defendant demonstrated that serious questions existed both as to the reliability and the completeness of materials produced in discovery by plaintiff, including the possible alteration of email, court concluded that forensic examination of defendant’s hard drives was warranted; court ordered counsel for the parties to meet and confer regarding a protocol for the imaging and subsequent production of responsive documents

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives; email

Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., 2006 WL 3771090 (S.D.N.Y. Dec. 22, 2006)

Dec 01 2006

Key Insight: Given the tremendous volume of information accumulated in claims database and defendant’s claimed inability to segregate claims based on various attributes, court ordered parties to develop sampling protocol to obtain examples of claims files that involved issue similar to that in the litigation

Nature of Case: Reinsurance dispute

Electronic Data Involved: Claims database

In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006)

Dec 01 2006

Key Insight: In stipulated order, parties agreed that plaintiffs would preserve hard drives used by plaintiffs and plaintiffs? decedents and that such hard drives would be imaged and analyzed pursuant to an agreed forensic examination protocol; that responsive ESI would be collected by defendants from defendants’ active IT environment and not from backup tapes absent exceptional circumstances, and that plaintiffs would defer to defendants as to the format of production

Nature of Case: Personal injury product liability

Electronic Data Involved: Hard drives, ESI

Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648 (D. Kan. 2006)

Dec 01 2006

Key Insight: Court granted motion to compel and overruled defendants’ objections that terms “electronic databases,” “personnel related data,” “database,” “coded fields” and “data dictionaries” were vague and ambiguous, since plaintiffs had attempted to resolve any ambiguity by providing definitions in a separate letter and court’s own guidelines referred to The Sedona Conference? comprehensive glossary of terms related to electronically stored information

Nature of Case: Employment discrimination

Electronic Data Involved: Databases

Loving v. N’Namdi, 2006 WL 3456311 (S.D.N.Y. Nov. 29, 2006)

Dec 01 2006

Key Insight: Where record showed that defendants’ record keeping was episodic at best, and that existing documentation was inaccurate and possibly manufactured for the litigation, court directed plaintiff, if she wished to undertake a forensic examination of any computer, to provide a detailed affidavit by a specialist who would conduct such testing, including a precise specification of what is to be done, for what purpose and in what period of time

Nature of Case: Breach of fiduciary duty against art gallery

Electronic Data Involved: Computer hard drive

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

Dec 01 2006

Key Insight: In follow up to earlier decision dismissing complaint as sanction for plaintiff’s discovery misconduct, court awarded defendant $35,000 in attorneys’ fees and full costs of $20,472 since forensic computer experts were “particularly necessary to uncover plaintiff’s skulduggery”

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

MacNamara v. City of New York, 2006 WL 3298911 (S.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court ordered production of handwritten worksheets used to compile database in light of demonstrated data entry errors that made accuracy of database printouts suspect; court also sustained objection to request for “all electronic data concerning RNC arrests” as impermissibly vague

Nature of Case: Litigation arising from arrests during 2004 Republican National Convention

Electronic Data Involved: Worksheets underlying database

Reino de Espana v. Am. Bureau of Shipping, 2006 WL 3208579 (S.D.N.Y. Nov. 3, 2006)

Dec 01 2006

Key Insight: Where Spain failed to place a timely and adequate litigation hold in its agencies and ministries, court found that Spain violated its discovery obligations under the FRCP and observed that relevant email and electronic records probably no longer existed; court granted defendant’s motion to compel and invited defendant to to file an application requesting the relief, remedy, or sanction it deemed appropriate in light of the court?s findings

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email and electronic records

Dec 01 2006

Key Insight: Adverse inference and monetary sanctions warranted, but not default judgment, where defendant acknowledged that its personnel routinely deleted emails without regard to whether the deleted emails were relevant to the litigation, but behavior did not constitute a pattern of deliberately deceptive litigation practices and there was evidence that the actual number of emails lost was small

Nature of Case: Copyright infringement

Electronic Data Involved: Email

Archive - December 2006

Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL 3290402 (N.D. Cal. Nov. 13, 2006)

Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 3371576 (N.D. Cal. Nov. 21, 2006)

Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co., 2006 WL 3771090 (S.D.N.Y. Dec. 22, 2006)

In re Celexa and Lexapro Prods. Liab. Litig., 2006 WL 3497757 (E.D. Mo. Nov. 13, 2006)

Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648 (D. Kan. 2006)

Loving v. N’Namdi, 2006 WL 3456311 (S.D.N.Y. Nov. 29, 2006)

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

MacNamara v. City of New York, 2006 WL 3298911 (S.D.N.Y. Nov. 13, 2006)

Reino de Espana v. Am. Bureau of Shipping, 2006 WL 3208579 (S.D.N.Y. Nov. 3, 2006)

In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060 (N.D. Cal. 2006)