Archive - June 2007

Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007)

In this case, plaintiff asked the court to enter a discovery order to "ensure the production of all electronically stored information in an acceptable format as required by law and the most recent amendments to the Federal Rules of Civil Procedure."  Plaintiff also sought to compel the re-production of ESI previously produced by defendant in hard copy form, and to compel the production of deleted documents.

Forensic Search 
Plaintiff first contended that, pursuant to the 2006 amendments to Fed. R. Civ. P. 34, it was entitled to an order that would require defendant to allow a forensic expert to search defendant’s computer systems, network servers and databases and would require defendant to provide back up tapes of certain information systems.  Plaintiff offered to pay the cost of the forensic expert and to allow defendant ten days to review the data for privilege before any production was made.  Defendant objected, arguing that the 2006 amendments required no such discovery order as a matter of course.  The court agreed with defendant, and observed:
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In re Genetically Modified Rice Litig., 2007 WL 1655757 (E.D. Mo. June 5, 2007)

This order constitutes the parties’ Agreed Order Regarding Preservation of Communications, Documents, Electronic Data, and Other Tangible Items, intended to govern the parties’ preservation efforts in these consolidated MDL proceedings.  The Agreed Order contains two parts: a lengthy definitional section and a section setting out specific preservation obligations.  The latter section provides that the preservation obligations set forth in the Order apply to currently-existing evidence within the parties’ possession, custody, or control, as well as evidence "generated, produced, or otherwise created in the future during the pendency of this Action until an agreement can be reached among the Parties regarding a cutoff date.”  It further provides:  “Notwithstanding any other provision of this Order, persons may generate business documents without preserving dictation, drafts, interim versions or other temporary compilations of information if such documents would not have been preserved in the ordinary course of business.” 

The Agreed Order further provides:

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Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007)

In this case, disabled plaintiffs claimed that WMATA failed to provide adequate paratransit services through the MetroAccess program and that the service provided was materially inferior to the services available to people without disabilities.  Discovery was heavily litigated, and Magistrate Judge John M. Facciola addressed several discovery motions in this opinion, one of which related to the production of email from backup tapes.

Specifically, plaintiffs sought an order requiring WMATA to produce backup tapes of certain electronic documents written and received since the filing of the lawsuit.  Plaintiffs argued that WMATA had failed to properly instruct employees to retain potentially responsive electronic documents and therefore should pay to create the backup tapes.  “Remarkably, although the complaint in this case was filed on March 25, 2004, WMATA acknowledges it did nothing to stop its email system from obliterating all emails after sixty days until, at the earliest, June of 2006.”  WMATA presented testimony that its email system was programmed with an automatic deletion feature that deleted any email after it had been in existence for sixty days, without regard to whether the email was unread, in a folder that the sender or recipient has created, or in the user’s "Sent" or "Trash" folders.  Further, while the user could defeat the feature by archiving the email, i.e., placing it in a location of the user’s choosing in an encrypted format, the majority of WMATA employees apparently did not do this.  “As a result, with the exception of three individuals, there has been a universal purging of all possibly relevant and discoverable emails every sixty days at least since the complaint was filed three years ago.” Read More

Calyon v. Mizuho Secs. USA Inc., 2007 WL 1468889 (S.D.N.Y. May 18, 2007)

This case involved claims against former employees (the “Individual Defendants”) and their new employer for the misappropriation of confidential business information.  According to Calyon, the Individual Defendants used email and small, hand-held computer storage devices to remove vast quantities of Calyon’s business data and documents.  Plaintiff and the Individual Defendants reached an agreement to preserve the hard drives of the Individual Defendants’ personal computers and computer storage devices by creating “mirror images” of them.  However, the parties were unable to reach agreement on the protocol for reviewing the mirror images, and sought the court’s assistance.
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