December 2007 – Page 16 – Electronic Discovery Law

Rebman v. Follet Higher Educ. Group, Inc., 2007 WL 1303031 (M.D. Fla. May 3, 2007)

Dec 01 2007

Key Insight: Where defendant showed that there were more than 200 million sales transactions contained in database and that it would be necessary to create a special software program to capture the information requested by plaintiffs and translate the information into a meaningful and readable format, court sustained defendant?s objections of burdensomeness and overbreadth and denied motion to compel; court would allow plaintiff to serve new, more narrowly tailored requests for production but would first require parties to confer in good faith to discuss the form in which ESI should be produced and how to ameliorate the costs attendant to production of such information

Nature of Case: Third party breach of contract and unfair trade practices

Electronic Data Involved: Sales database

Reiman v. Does 1-1000, 2007 WL 1271157 (W.D. Wash. May 1, 2007)

Dec 01 2007

Key Insight: Court denied pro se plaintiff?s request for a subpoena in case against Doe defendants, in part because subpoena sought more than mere production of documents and materials already in existence, and appeared to mandate the creation of new electronically stored information

Nature of Case: Unspecified claims against Doe defendants

Electronic Data Involved: Email

Synergy Tech & Design Inc. v. Terry, 2007 WL 1288464 (N.D. Cal. May 2, 2007)

Dec 01 2007

Key Insight: Where defendants produced only 82 pages of emails without their attachments, and the record indicated that other responsive material existed, including the email attachments and data being mined by forensic expert hired by defendant, court found that defendants had not fully complied with prior discovery order, imposed monetary sanctions, and ordered defendant to produce additional documents and/or provide declarations detailing their specific efforts to locate responsive material

Nature of Case: Patent litigation

Electronic Data Involved: Email attachments and other data obtained through forensic means

Palgut v. City Of Colo. Springs, 2007 WL 1238730 (D. Colo. Apr. 27, 2007)

Dec 01 2007

Key Insight: Finding that defendant’s failure to identify certain backup tapes in its initial disclosures was inadvertent and was not intentional, willful, or wanton, court ruled that defendant need not produce such backup tapes because production would be unduly burdensome and not reasonably calculated to lead to relevant information; court further found that inadvertent disclosures of protected work product by each of the parties did not effect waiver and prohibited defendant from using or referring to any ?embedded data? contained in plaintiff?s discovery requests and responses

Nature of Case: Employment discrimination

Electronic Data Involved: Backup tapes and embedded data

Silipos, Inc. v. Bickel, 2007 WL 1180571 (S.D.N.Y. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court directed plaintiff to identify ?the lowest-paid employee of the data forensics company who is (a) knowledgeable about the process by which the data was extracted from defendant?s computer, and (b) able to give a deposition? by court?s deadline; court further ruled that defendant would be permitted to depose that employee for up to four hours, provided that defendant must pay for employee’s time at same hourly rate that had been billed to plaintiff; court encouraged counsel to take the deposition by telephone

Nature of Case: Misappropriation, breach of loyalty

Electronic Data Involved: Deleted documents recovered from defendant’s computer

Horowitch v. Diamond Aircraft Indus., Inc., 2007 WL 1192401 (M.D. Fla. Apr. 23, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff’s motion to compel a more detailed answer to interrogatory seeking information about the “location” of electronically stored information, but ordered defense counsel to immediately provide plaintiff’s counsel with further information about its answer to the interrogatory “and any other information pertaining to electronic discovery issues”

Nature of Case: Breach of contract, specific performance

Electronic Data Involved: ESI generally

White v. Potter, 2007 WL 1207205 (D.D.C. Apr. 24, 2007)

Dec 01 2007

Key Insight: Court ordered that certain representations of the Postal Service regarding the ineffectiveness or impossibility of additional searching for responsive documents and ESI be documented and attested to by sworn testimony, in order to lay a solid foundation upon which court could decide motion to compel and/or any future motion for sanctions

Nature of Case: Employment litigation

Electronic Data Involved: ESI

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. Apr. 9, 2007)

Dec 01 2007

Key Insight: Where corporate designee could not fully answer questions regarding certain topics listed in Rule 30(b)(6) notice pertaining to plaintiff?s computer servers, software, data storage and retention, or plaintiff?s efforts to search for responsive email and documents, and did not know ?exactly how [the e-discovery vendor] searched? plaintiff?s servers or ?what all was on? the CD that was produced to defendants, court found that witness was inadequately prepared and ordered plaintiff to produce a supplemental Rule 30(b)(6) witness on those topics

Nature of Case: Antitrust and tortious interference litigation

Electronic Data Involved: Email; hardware and software; systems information

E.E.O.C. v. Boeing Co., 2007 WL 1146446 (D. Ariz. Apr. 18, 2007)

Dec 01 2007

Key Insight: Where court had previously denied plaintiff’s motion to compel on the grounds that defendant had made the showing, pursuant to Rule 26(b)(2)(C), that email sought was “not reasonably accessible because of undue burden or costs,” and because plaintiff had not shown good cause to justify the expense of the proposed discovery, court denied subsequent motion to compel defendant’s Rule 30(b)(6) designee to provide testimony on how email production cost estimate was determined

Nature of Case: Employment litigation

Electronic Data Involved: Email

Io Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court granted plaintiff’s motion to compel and denied defendant’s request to shift costs of production to plaintiff, since defendant provided no information about whether and how such information was “inaccessible” or any other information relevant to cost-shifting determination under Zubulake III; court encouraged parties to agree on most efficient means of production and noted that plaintiff had indicated willingness to provide high capacity storage devices

Nature of Case: Copyright infringement

Electronic Data Involved: Adult video content; website traffic information

Archive - December 2007