Archive - May 2007

Guy Chem. Co. v. Romaco AG, 2007 WL 1521468 (N.D. Ind. May 22, 2007)

In this breach of contract case, plaintiff Guy Chemical sought damages for, among other things, the loss of business from third parties.  Defendant Romaco subpoenaed records from ABRO Industries, Inc., a customer of plaintiff, to learn how much of ABRO’s business plaintiff had lost.  Specifically, Romaco sought correspondence, orders, cancelled orders, or orders that could not be filled between Guy Chemical and ABRO.  Apparently, most of the requested information was stored electronically by ABRO.  ABRO informed Romaco that it used an outside computer firm to handle its electronic data, and that it would have to determine how to search for the records.  ABRO subsequently advised Romaco that the final cost for searching and producing the requested records would be $7,200.  ABRO did not object to producing the material sought, but requested that Romaco pay the cost of production.  Romaco moved to compel, arguing that ABRO was being unreasonable by requiring payment for the cost of production as a condition precedent to production.
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Doctor John’s, Inc. v. City of Sioux City, 486 F. Supp. 2d 953 (N.D. Iowa 2007)

Although the parties settled their respective claims, the court retained jurisdiction over the question of whether or not sanctions should be imposed upon the City for the destruction, during the pendency of litigation, of recordings of City Council closed sessions concerning the ordinances challenged in the case.  The court held a conference on the matter and received further information about changes made to the City’s policy regarding retention of recordings of closed sessions of the City Council.

The court began its analysis by remarking:

A first year law student should have–and most would have–known that a party must retain documents or records that are likely to be relevant in pending litigation.  The City’s claim that it was simply following state law in destroying key evidence is laughable and frivolous.  No state or federal statute, rule, or common law allows a party to destroy critical evidence during the pendency of litigation, and the City policy that permitted destruction of certain documents after a specified period of time certainly did not require destruction of such documents.

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O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

This is a putative class action in which the plaintiffs allege they were discriminated against because they were not minorities or females.  Finding that plaintiffs were entitled to limited precertification discovery, the court ordered the parties, pursuant to Rule 26(f), to jointly prepare and submit to the court a specific and detailed precertification discovery plan.  Based upon the previous disputes between the parties, the court stated it anticipated issues arising as to the discovery of data through various types of computer programs maintained by defendant.  Thus, in order to assist the parties in conducting discovery of electronically stored information (“ESI”), the court set out detailed guidelines that would govern the parties.  The guidelines were adapted from the “Suggested Protocol for Discovery of Electronically Stored Information” set forth by the United States District Court for the District of Maryland.

The court encouraged the parties to discuss the following subjects, in preparing the precertification discovery plan:
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Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

In this case, the parties filed cross-motions for summary judgment but failed to comply with the requirement of Rule 56 that they support their motions with admissible evidence.  Chief United States Magistrate Judge Paul W. Grimm denied both motions without prejudice to allow resubmission with proper evidentiary support.  In this lengthy memorandum opinion, Magistrate Judge Grimm remarks that, although cases abound regarding the discoverability of electronic records, research failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence.  “Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.”  Magistrate Judge Grimm describes five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice, and counsels:

Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses.  Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try.  The Court hopes that the explanation provided in this memorandum order will assist in that endeavor.

View the full opinion on the court’s website, here.

Oxford House, Inc. v. City of Topeka, 2007 WL 1246200 (D. Kan. Apr. 27, 2007)

This litigation arose from the City of Topeka’s decision to deny plaintiff’s request for conditional use permits.  Plaintiff propounded interrogatories seeking information related to the City’s decision on the permits, specifically requesting information about, among other things:  “Each and every communication related to the application expressed in instant messages, either saved on a data recording medium or not saved.”  In response, the City referred plaintiff to certain documents that had been produced.  Plaintiff asserted that the documents did not sufficiently respond to the interrogatory, and argued that the City failed to identify specific emails or ex parte electronic communications, resulting in an incomplete discovery response.  Plaintiff moved to compel further responses.  The City countered that:  (1) it possessed no additional documents or information responsive to the requests, and (2) the requests were unduly burdensome.  The court sided with the City on both arguments, and denied the motion to compel.
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