Archive - 2006

Bank of America Corp. v. SR Int’l Bus. Ins. Co., Ltd., 2006 WL 3093174, 2006 NCBC 15 (N.C. Super. Nov. 1, 2006)

In its introductory remarks, the court advised:

This opinion should be read in conjunction with the opinion in Analog Devices, Inc. v. Michalski, 2006 NCBC 14, (N.C.Super.Ct. Nov. 1, 2006), issued contemporaneously herewith. The decision in that case deals with production of inaccessible data in the context of a party-to-party dispute and provides greater detail concerning approaches used by various courts in e-discovery disputes. Both this opinion and the opinion in Analog should make it clear that: (1) the language of current North Carolina Rules of Civil Procedure 26 and 45 still control trial court decisions and work well, (2) each case is different and fact intensive, (3) there exist numerous factors which might come into play in the varying factual contexts of each case, and (4) trial courts should always be cognizant that e-discovery decisions, especially those involving inaccessible data, have the potential to be outcome determinative because of the costs involved.

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Analog Devices, Inc. v. Michalski, 2006 WL 3287382 (N.C. Super. Nov. 1, 2006) (Unpublished)

In this misappropriation of trade secrets case, defendants moved to compel the production of emails of the originators of the trade secrets at issue relating to the development of those trade secrets and products initially implementing them. At the hearing on the motion, the court ordered Analog to determine the search capability of the databases containing the emails requested and to conduct a word search, if possible, using agreed-upon terms, of emails sent by specific inventors over a two-year period surrounding the release dates of products implementing the alleged trade secrets. Counsel for Analog subsequently reported that it would produce emails still existing on the hard drives of the personal computers used by the trade secret originators. As to emails no longer existing on personal computers but stored on its backup server, Analog argued that production would be expensive and time consuming and therefore unduly burdensome.

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In re Napster, Inc. Copyright Litig., 2006 WL 3050864 (N.D. Cal. Oct. 25, 2006)

In this opinion, the court denied plaintiffs’ request for spoliation sanctions in the form of a default judgment, and instead granted plaintiffs’ alternative request for a preclusion order, an adverse inference instruction and an award of attorneys’ fees. Plaintiffs’ motion for sanctions argued that defendant Hummer Winblad (“Hummer”) knowingly and intentionally deleted an undetermined number of emails which they had a duty to preserve and to produce in response to plaintiffs’ document requests. Read More

In re Quintus Corp., 353 B.R. 77 (Bankr. D. Del. 2006) 

Avaya, Inc. purchased the assets of the debtors in bankruptcy, and agreed to assume certain of the debtors’ liabilities. Thereafter, the trustee filed an adversary complaint against Avaya asserting breach of contract and unjust enrichment for failure to pay certain liabilities under the parties’ asset purchase agreement (“the APA”). The trustee sought judgment against Avaya in the amount of $1,888,410.52 for the unpaid claims. Read More

Ponca Tribe of Indians of Okla. v. Cont’l Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11, 2006)

In this decision, the court ruled on plaintiffs’ motion to compel certain electronic information.

First, the court rejected plaintiffs’ request that defendant permit them to image or download to a database all information stored in defendant’s “data historian.” Plaintiffs initially proposed imaging or mirroring the data historian as a means of easily obtaining the requested information. However, defendant objected and argued that such imaging would necessarily require approximately 100 days to complete and that any such imaging would violate the licensing for the operating software used. Plaintiffs then suggested that the information be downloaded into a database using software currently possessed by defendant. Defendant responded that it did not own the software modules, but that such software could be purchased for approximately $5,000 and would require another $5,000 in training/programming to make the modules useable. Read More