Archive - 2007

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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Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007)

In this employment discrimination case, plaintiff sought the production of email of seven Xpedx employees during various time periods.  Plaintiff contended that defendant implemented a new email deletion policy in 2003, under which emails were deleted within 90 days of creation, unless designated for retention.  Plaintiff asserted that, under defendant’s policy, an email "that is automatically deleted by the system can not be restored except with the expressed consent of a member of the company’s legal or tax departments."  Plaintiff further contended that defendant’s archive system, "legal hold" folders, and defendant’s permanent back-up computer system may contain copies of the requested emails.  Thus, plaintiff sought permission to take the deposition of defendant’s corporate representative for information technology regarding defendant’s email deletion policy and procedures for retrieving deleted emails.  Plaintiff argued that this would allow the parties to determine the existence of deleted emails and if defendant destroyed any evidence relating to plaintiff’s claims.
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Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. Apr. 24, 2007)

In this case, Greyhound Lines, Inc. sued Robert Wade and Archway Cookies, LLC (collectively Archway).  In August 2000, an Archway truck driven by Wade rear-ended a Greyhound bus on Interstate 80 in Nebraska.  After a bench trial, the district court apportioned fault at 85 percent to Archway and 15 percent to Greyhound.  Archway appealed, asserting, among other things, that the court erred in refusing to impose sanctions for alleged spoliation of electronic data. Read More

Metro Wastewater Reclamation Dist. v. Alfa Laval, Inc., 2007 WL 1160012 (D. Colo. Apr. 19, 2007)

In this brief order, the court granted defendant’s motion to compel and ordered plaintiff to produce, among other things, certain plant data “in electronic format” and “all electronic documents, including the archived or back-up emails and electronic files for the Plaintiff’s personnel involved with the Project who are specifically identified in [defendant’s] Requests for Production related to the processes and operation of the Plant.”

The case involved claims for breach of a procurement contract for failure to meet the guaranteed specifications, and counter-claims seeking declaratory judgment relief related the contract.  Plaintiff had argued that the requested discovery was irrelevant, overly broad, overly burdensome, and costly.  The court’s analysis was short — it simply found that the requested discovery as outlined in the motion was relevant to the issues pending before the court and was discoverable under Fed. R. Civ. P. 26.

World Courier v. Barone, 2007 WL 1119196 (N.D. Cal. Apr. 16, 2007)

In this misappropriation of trade secrets case, plaintiff moved for sanctions for spoliation of evidence based upon the admitted destruction of a hard drive containing a copy of plaintiff’s data by defendant Barone’s husband, Jay Barone.  Plaintiff sought an adverse inference instruction and monetary sanctions consisting of compensation for the time and expense involved in the forensic examination of computer files, the time and costs associated with developing deposition testimony and document discovery, and attorney’s fees associated with litigating the motion.  The court granted in part and deferred in part the motion.

The court rejected defendants’ argument that they could not be sanctioned because the spoliator, Mr. Barone, was not a party to the action.  The court stated that the argument lacked merit because it overlooked a party’s affirmative duty to preserve evidence.  The court stated the duty to preserve extends to evidence not directly within the party’s custody or control so long as the party has access to or indirect control over such evidence.  The court found:

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