Archive - 2007

Butler v. Kmart Corp., 2007 WL 2406982 (N.D. Miss. Aug. 20, 2007)

In this order, the court considered plaintiff’s motion to compel Kmart to respond to several discovery requests.  The court granted the motion in part, and denied it in part.

Two of the issues considered by the court touched directly on the discovery of electronically stored information (“ESI”).  One of plaintiff’s complaints in the motion was the dearth information produced by Kmart in response to a particular set of RFPs.  The court observed that while counsel must make a reasonable effort to ensure their client has produced all the documents responsive to a discovery request, “a party cannot be expected to produce information that no longer exists.”  The court found that the affidavits submitted by Kmart describing their unsuccessful efforts to locate tangible items at various store locations indicated “no evidence that Kmart has failed to make a diligent search,” and declined to order additional searches for tangible items.  However, after noting that Kmart was also obligated to produce ESI relevant to the requests at issue, the court found that Kmart’s efforts in that regard were less clear, and ordered additional steps be undertaken:

It is less clear whether Kmart acted with similar diligence in search its electronically stored information.  In fact, Kmart mentions very little about whether it conducted searches in its various computer systems for documents responsive to the various discovery requests.  Absent some valid objection, it is clear that Kmart must produce electronically stored information, if it exists, responsive to the plaintiff’s discovery request.

At this point, without nothing more from Kmart on this matter, the court will compel its production of electronically stored information responsive to plaintiff’s various requests.  Once again, Kmart will conduct a thorough search of its computer systems and will provide the plaintiff with any electronically stored information responsive to the request or, alternatively, with responses (and accompanying affidavits, if necessary) demonstrating its diligent search of its computer systems.

(Italics in original.)

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In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)

In this opinion, United States Magistrate Judge David A. Barker considered Plaintiffs’ motion for sanctions based on the failure of defendant AstraZeneca (“AZ”) to timely comply with various discovery obligations.

In April 2007, Plaintiffs had filed a motion to compel completed production of various items listed in the case management order (“CMO”) entered January 2007.  (For a summary of the related opinion discussing the CMO, click here).  The motion was denied without prejudice by the court, to allow the parties to confer “in good faith and in extenso” on the issues raised in the motion to compel.   At the same time, the court scheduled an evidentiary hearing on the motion, warning the parties:

ANY PARTY WHOSE CONDUCT NECESSITATES THE EVIDENTIARY HEARING SHOULD EXPECT THE IMPOSITION OF SANCTIONS FOR ANY UNREASONABLE OR INAPPROPRIATE CONDUCT OR POSITION TAKEN WITH RESPECT TO THESE MATTERS.

(Capitals and bold in original.)

The evidentiary hearing was ultimately canceled after the parties filed a Joint Statement of Resolved Issues and Notice that a Hearing is Not Required.  Plaintiffs agreed to the Joint Statement and Notice based on AZ’s representations that it would correct the faults described by Plaintiffs in their original motion to compel.  When the corrections were not made, Plaintiffs filed this motion for sanctions.

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Peskoff v. Faber, 244 F.R.D. 54 (D.D.C. 2007)

In this opinion, United States Magistrate Judge John M. Facciola continued attempts to resolve ongoing discovery issues in Plaintiff Jonathan Peskoff’s suit to recover damages for financial injury resulting from Defendant Michael Faber’s operation of a venture capital fund, called NextPoint Partners, LP.  Peskoff and Faber were managing members of NextPoint GP, LLC ("NextPoint "), the general partner of the venture capital fund.  Peskoff left NextPoint in January 2004 and filed an action against Faber shortly after.

In discovery, Peskoff sought documents, including email from his time at NextPoint Management. Faber’s initial productions of email and other documents did not include any emails that Peskoff received or authored between mid-2001 and mid-2003.  In a previous ruling centering on the missing data, the court noted that the unresolved issue was whether such emails still existed and could be located, and whether the efforts made to date to locate them had been adequate.  The court had ordered the Defendant to conduct additional searches for any email involving Peskoff, and to submit a sworn statement and provide testimony at an evidentiary hearing on the nature and adequacy of such searches.  (For additional background information, click on the links to see summaries of two previous orders in this case related to this issue, entered July 2006 and February 2007).

In this opinion, the court noted that Faber had failed to appear at the subsequent evidentiary hearing, and that this failure to comply with the court’s previous order would be construed against him.  The court then relied on the testimony made by others at the hearing, and on other available information, and concluded that the production to date raised many questions regarding its completion and the sufficiency of the searches performed.  The court also concluded that any additional searches would require additional resources beyond the tools available to NextPoint.

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Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California

The lawyers who represented Qualcomm in this unsuccessful patent litigation, who on August 13, 2007 were ordered to appear today to show cause (“OSC”) why sanctions should not be imposed against them for failure to comply with the Court’s orders, will not be appearing in court today after all.  Magistrate Judge Barbara Lynn Major has granted the lawyers’ applications to extend the August 22, 2007 filing date for declarations regarding the imposition of sanctions and the August 29, 2007 OSC hearing date.  In their applications, the lawyers acknowledged that the “OSC raises complex and very serious issues that potentially impact the legal careers of the lawyers who are the subject of the OSC,” and explained that additional time was needed to get the lawyers’ newly-hired attorneys up to speed on the record and the issues, and adequately prepare for the OSC.  Finding that good cause was shown, the Court granted the applications and extended the deadline for filing declarations to Friday, September 21, 2007, and moved the hearing date to Friday, October 12, 2007 at 9:30 a.m.

In related rulings, Magistrate Judge Major agreed to allow the lawyers to be represented by their own counsel for purposes of responding to the OSC.  The HellerErhman lawyers will be represented by Kirby Noonan Lance & Hoge LLP of San Diego, and the lawyers from Day Casebeer Madrid & Batchelder will be represented by Shartsis Friese LLP of San Francisco. 

As noted in our August 13, 2007 post, the Order to Show Cause was issued days after District Court Judge Rudi M. Brewster entered a 54-page Order on Remedy for Finding of Waiver.  There, the District Judge found “by clear and convincing evidence that Qualcomm[’s] counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007.”  Among other things, the Court highlighted Qualcomm’s production of over 200,000 pages of highly relevant emails and electronic documents four months post-trial.

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Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007)

In this opinion, the district court denied defendants’ motion for review of a prior discovery order that required defendants to begin preserving and subsequently produce certain data held in the random access memory (RAM) of defendants’ computer servers.  The court noted that, at the heart of defendants’ motion for review was a question of first impression:  Is the information held in a computer’s random access memory (RAM) "electronically stored information" under Federal Rule of Civil Procedure 34?  The court concluded that it is: 

Defendants and amici seek to engraft on the definition of “stored” an additional requirement, that the information be not just stored, but stored “for later retrieval.”  They argue that “electronically stored information” cannot include information held in RAM because the period of storage, which may be as much as six hours, is too temporary.  The Court finds this interpretation of “stored” unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM.  The Court holds that data stored in RAM, however temporarily, is electronically stored information subject to discovery under the circumstances of the instant case.

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