December 2006 – Page 7 – Electronic Discovery Law

San Francisco Bay Area Rapid Transit Dist. v. Spencer, 2006 WL 3050860 (N.D. Cal. Oct. 23, 2006)

Dec 01 2006

Key Insight: Where plaintiff claimed that defendants did not produce all requested electronic documents and that defense counsel had not conducted a proper inquiry to determine whether or not all electronic documents were produced, court ordered defendants to verify that all requested electronic documents were produced and to produce any electronic documents not yet provided

Nature of Case: Fraud and related claims stemming from BART construction subcontracts

Electronic Data Involved: Electronic documents

In re Atlantic Int’l Mortgage Co., 2006 WL 2848575 (Bankr. M.D. Fla. Aug. 2, 2006)

Dec 01 2006

Key Insight: Court rejected trustee’s request for entry of default judgment based upon based on law firm’s failure to retain and timely produce relevant documents and electronically-stored information, but found that monetary sanctions were appropriate; trustee awarded his reasonable attorneys’ fees and costs incurred in pursuing all discovery in the adversary proceeding

Nature of Case: Adversary proceeding in bankruptcy court

Electronic Data Involved: Backup tapes

In re Exxon Corp., 208 S.W.3d 70 (Tex. App. 2006)

Dec 01 2006

Key Insight: After concluding that personal injury plaintiffs had failed to establish any document withholding or other discovery abuse by Exxon, state appellate court conditionally granted writ of mandamus and directed the trial court to vacate its orders requiring Exxon to present a deponent to testify about documents that had been requested, specifically as to: (1) existence; (2) electronic creation, duplication and storage; (3) document retention and destruction policies; (4) location; (5) organization, indexing and filing; (6) method of search; (7) completeness; and (8) authenticity

Nature of Case: Petition for writ of mandamus

Electronic Data Involved: Rule 30(b)(6) deposition

Satchell v. Fedex Express, 2006 WL 2884318 (N.D. Cal. Oct. 10, 2006)

Dec 01 2006

Key Insight: Court granted motion to compel and motion for sanctions, requiring defendant to produce additional documents and file a sworn declaration describing all steps taken to locate particular items; to the extent that defendant’s production did not include responsive documents because they ceased to exist in either paper or electronic format, defendant required to file a sworn declaration stating when it destroyed or ceased to retain these documents, and the policies or reasons for their destruction; to the extent defendant contended that it already produced any of the documents described, defendant to provide a sworn declaration identifying the Bates numbers that correspond to the type of document; defendant further ordered to pay plaintiffs’ reasonable attorneys’ fees and costs associated with the motion

Nature of Case: Class action employment litigation

Electronic Data Involved: Personnel records

S.E.C. v. Brady, 2006 WL 3301865 (N.D. Tex. Oct. 16, 2006)

Dec 01 2006

Key Insight: Court sustained objection to portion of defendant’s subpoena based on undue burden, where potentially responsive electronic data was estimated to be 32,222,000 pages and there were over 226 boxes of hard copy documents, and vast majority of responsive documents were in the possession of the SEC and had either already been produced by the SEC to Brady, or would shortly be produced

Nature of Case: Securities litigation

Electronic Data Involved: Email and electronic data

Jordan v. Dillards, Inc., 2006 WL 2873472 (D. Kan. Oct. 5, 2006)

Dec 01 2006

Key Insight: Defendant’s motion to compel production of plaintiff’s hard drive for inspection denied, since defendant “provided no justification for so broad or invasive a request” and there was no showing that the request was reasonably calculated to lead to the discovery of admissible evidence

Nature of Case: Employment litigation

Electronic Data Involved: Plaintiff’s hard drive

Columbus McKinnon Corp. v. HealthNow New York, Inc., 2006 WL 2827675 (W.D.N.Y. Sept. 29, 2006)

Dec 01 2006

Key Insight: Court rejected defendant’s excuses for extended delay in producing itemization of withdrawals in a format usable by plaintiff, and ordered defendant to reimburse plaintiff for the reasonable cost of attorneys’ fees incurred in moving for contempt of court’s prior order

Nature of Case: Breach of contract

Electronic Data Involved: Billing records, backup tapes, DVDs

Kay S. v. Mark S., 142 P.3d 249 (Ariz. Ct. App. 2006)

Dec 01 2006

Key Insight: Appellate court found there was appearance of impropriety which warranted trial judge’s disqualification; on remand, new judge to consider, among other things, mother’s request for production of hard drive from father’s work computer

Nature of Case: Divorce proceedings

Electronic Data Involved: Hard drive

Malletier v. Dooney & Burke, Inc., 2006 WL 2109472 (S.D.N.Y. July 20, 2006)

Dec 01 2006

Key Insight: Where plaintiff sought a fuller production of email communications from the servers of a wide variety of DB personnel, and DB represented that it searched all pertinent email files and had no other responsive emails, court ruled: “Under these circumstances, the only avenue open to [plaintiff] on this matter is to pursue the question of the scope of e-mail use and retention through depositions.”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

United States ex rel. Englund v. Los Angeles County, 2006 WL 1490641 (E.D. Cal. May 26, 2006)

Dec 01 2006

Key Insight: Court ordered defendant to complete a diligent search of all documents subject to its control, including electronic documents, and to produce all documents by certain date; court further ordered defendant to certify, in writing, that it had performed a diligent search, including of its electronic files, to locate documents responsive to plaintiff’s document requests

Nature of Case: False Claim Act

Electronic Data Involved: Electronic documents

Archive - December 2006