2006 – Page 9 – Electronic Discovery Law

Tekena USA, LLC v. Fisher, 2006 WL 2536631 (N.D. Ill. Aug. 31, 2006)

Dec 01 2006

Key Insight: District court affirmed bankruptcy court’s orders appointing a receiver to monitor debtor’s operations in order to preserve debtor’s assets, and restraining debtor from destroying any records or computer files, where trustee showed that, among other discovery abuses, the debtor’s business data contained on hard drives had been destroyed

Nature of Case: Appeal from bankruptcy court ruling

Electronic Data Involved: Business data on hard drives

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006)

Dec 01 2006

Key Insight: In follow-up to earlier decision awarding sanctions for discovery failings (Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)), court awarded Phoenix its attorney’s fees and costs associated with bringing the motion for sanctions in the amount of $45,162, to be paid equally by the SRC Defendants and their law firm; court further ruled that the SRC Defendants’ share ?may not be borne by their insurance carriers?

Nature of Case: Investment company sued former advisor for breach of fiduciary duty, common law fraud, and negligent misrepresentation

Electronic Data Involved: Computer hard drives and servers

Lewis v. Sch. Dist. #70, 2006 WL 2506465 (S.D. Ill. Aug. 25, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel further response to overbroad request for all emails, finding that defendants’ production of all existing emails sent to or from plaintiff, or pertaining to plaintiff’s performance during relevant time period was a reasonable attempt to provide responsive information; court further rejected plaintiff’s motion for an order to show cause regarding possible spoliation, concluding that it was not reasonable for defendants “to have foreseen that all e-mails would be relevant to plaintiff’s situation”

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Wachtel v. Health Net, Inc., 2006 WL 2506771 (D.N.J. Aug. 29, 2006)

Dec 01 2006

Key Insight: Court granted plaintiffs’ appeal of magistrate’s order and would permit plaintiffs to raise evidentiary objections to certain evidence at trial, notwithstanding terms of pretrial order which required in limine motions to be filed by certain date, since defendants’ tardy production of hundreds of responsive emails and/or non-compliance with discovery orders made it impossible for plaintiffs to raise those objections as motions in limine

Nature of Case: Beneficiaries of employment benefit health plans asserted class action claims under ERISA

Electronic Data Involved: Email

Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL 2318803 (N.D. Cal. Aug. 10, 2006)

Dec 01 2006

Key Insight: Court denied motion to compel plaintiff to produce a witness for further deposition under FRCP 30(b)(6), stating that, although defendant “may have some basis for complaining about the timing and manner in which the spreadsheet was produced,” defendant did not demonstrate that additional testimony was necessary regarding the spreadsheet, or that there was any information that was more readily obtainable from a live witness than from the spreadsheet which had been produced in native format

Nature of Case: Trademark infringement

Electronic Data Involved: Excel spreadsheet

Krumwiede v. Brighton Assocs., L.L.C., 2006 WL 2349985 (N.D. Ill. Aug. 9, 2006)

Dec 01 2006

Key Insight: Further to its May 8, 2006 order imposing severe sanctions against Krumwiede for willful and bad faith spoliation of evidence, court awarded Brighton $111,348 for its costs and fees relating to sanctions motion

Nature of Case: Former employee who went to work for competitor sued for back pay and reformation of employment agreement; former employer asserted counterclaims for breach of non-compete and confidentiality clauses and related claims

Electronic Data Involved: Laptop computers

Recinos-Recinos v. Express Forestry, Inc., 2006 WL 2349459 (E.D. La. Aug. 11, 2006)

Dec 01 2006

Key Insight: Court imposed monetary sanctions of $36,391 where defendants “made no effort whatsoever to locate and provide either documentary or electronic data discovery,” and erroneously represented that relevant electronic evidence was irretrievable, thus giving plaintiffs no choice but to incur the extraordinary expense of hiring a computer consulting firm to retrieve what was purportedly ?irretrievable?

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act

Electronic Data Involved: Payroll data

In re ULLICO Inc. Litig., 237 F.R.D. 314 (D.D.C. 2006)

Dec 01 2006

Key Insight: Where court found that ULLICO had in bad faith “grossly abused” the use of the “confidential” designation allowed under parties’ stipulated protective order, court ordered ULLICO to completely re-do its confidentiality designations and also ensure that the documents were correctly identified in parties’ joint discovery database

Nature of Case: ERISA litigation

Electronic Data Involved: Confidential documents, joint discovery database

A/R Roofing, L.L.C. v. Certainteed Corp., 2006 WL 2381610 (D. Kan. Aug. 16, 2006)

Dec 01 2006

Key Insight: Where the font used by plaintiff’s expert in his hard copy list of customer estimates and contracts was ?incredibly small? and difficult to read without magnification, thus rendering hard copy list inadequate, and because defendant’s request for production of material in electronic form was not otherwise prohibited by scheduling order, court granted defendant’s motion to compel the data in electronic format

Nature of Case: Plaintiff claimed loss of business resulting from letter sent by defendant

Electronic Data Involved: Customer list

z4 Techs., Inc. v. Microsoft Corp., 2006 WL 2401099, *18 (E.D. Tex. Aug. 18, 2006)

Dec 01 2006

Key Insight: On defendants’ motion for a new trial, court concluded that jury was properly instructed that it could make an adverse inference against Microsoft with regard to relevant email that was not produced until the day before trial

Nature of Case: Patent infringement

Electronic Data Involved: Email

Archive - 2006