Archive - 2007

Apsley v. Boeing Co., 2007 WL 163201 (D. Kan. Jan. 18, 2007)

In this employment discrimination case, plaintiffs moved to compel further responses and production of information from the defendants, and also asked the court to rule on plaintiffs’ email search protocol. Plaintiffs sought to compel Boeing and defendant Spirit Aerosystems to produce emails under the following criteria:
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Roberts v. Canadian Pac. R.R. Ltd., 2007 WL 118901 (D. Minn. Jan. 11, 2007)

In this decision, Chief District Judge James M. Rosenbaum granted plaintiff’s motion for leave to conduct limited discovery concerning spoliation of evidence on an expedited basis. The case concerned a train derailment accident that occurred near Minot, North Dakota, and was one of more than 100 cases removed to the court after having been filed in state court. During the state court proceedings, plaintiffs had discovered an email message sent by a manager to the railroad’s top claims agent. The message began by stating: “In the tradition of keeping very few Minot-related e-mails . . .” The manager was deposed and asked about the email, at which time he admitted destroying emails regarding the derailment, purportedly based upon the direction of a higher-up in the organization. Subsequent to the deposition, defendants apparently hired a computer forensics expert to investigate whether electronic data was destroyed, and if so, whether any deleted material could be retrieved. Plaintiffs sought to discover the results of the investigation and to depose the forensics expert as soon as possible.
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In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 2007 WL 121426 (E.D.N.Y. Jan. 12, 2007)

This case is a consolidated multidistrict litigation brought by some plaintiffs as a putative class action, as well as by other individual plaintiffs who sued exclusively on their own behalf. In this decision, Magistrate Judge James Orenstein addressed a dispute that arose between the individual plaintiffs and the defendants regarding metadata and the format of production. Between June and November 2006, the individual plaintiffs had made at least six productions of electronic documents using their own protocol, which involved printing electronic documents and then scanning the pages thus printed to create “TIFF” images, which could be converted into a searchable text file through the use of “OCR” software. “In other words, Individual Plaintiffs have rather laboriously stripped their text-searchable electronic documents of metadata that would not appear in printed form, and then converted them back into text-searchable electronic documents without that subset of metadata.”
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Hedenburg v. Aramark Am. Food Servs., 2007 WL 162716 (W.D. Wash. Jan. 17, 2007)

In this employment discrimination case, defendant sought to probe the veracity of plaintiff’s claims by seeking a "mirror image" of plaintiff’s home computer hard drive. Defendant contended that plaintiff’s personal correspondence with unnamed third parties (in the form of emails or internet postings) might reveal discrepancies in her testimony about the impact of the events on her emotional state, or in her testimony about what occurred. Defendant argued that access to a plaintiff’s computer was common in employment cases, and offered to have the hard drive mirror image sent to a "special master” in an effort to avoid retrieval of privileged or other non-discoverable information. Plaintiff stated that she made a diligent search for her computer files and contended that she did not have additional information. She objected to the discovery as a "fishing expedition" and refused to permit the defendant access to her home computer’s hard drive.
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Williams v. Sprint/United Mgmt. Co., 2006 WL 3691604 (D. Kan. Dec. 12, 2006)

In this decision, Magistrate Judge Waxse addressed plaintiffs’ continuing complaints about defendant’s separate production of transmittal emails and the spreadsheets they transmitted. The issue had been raised and discussed during several conferences with the court, and defendant had agreed to provide a “Spreadsheet Report” that would cross-reference the hard copy transmittal emails to the electronic spreadsheets. However, plaintiffs continued to experience difficulty matching up the transmittal emails and their attachments and moved for the production of the transmittal emails and their attachments in native format. Plaintiffs argued that this would eliminate the complicated, confusing, incomplete, and inaccurate Spreadsheet Reports and put both parties on the same discovery playing field.
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Semsroth v. City of Wichita, 239 F.R.D. 630 (D. Kan. 2006)

In this employment discrimination suit, the plaintiffs requested information relating to emails sent to or by other officers within the Wichita Police Department.  Through negotiations, the parties narrowed that request to copies of emails from 117 different supervising officers to the extent that such emails existed on a back-up tape of July 23, 2004.  The city moved for a protective order that would shift the cost of searching the backup tape to the plaintiffs, estimating the cost to be between $1,950 and $2,625.

Citing the Zubulake decisions, the court declined to conclude that cost of restoring and searching the email backup tape was such as to render that back-up tape "not reasonably accessible because of undue burden or cost."  However, it found that limits on the scope of the discovery were nonetheless appropriate under Rule 26(b)(2).  Accordingly, the court limited the scope of the discovery in two respects:  (1) It struck several search terms proposed by plaintiffs because it concluded that they were common enough that they might well result in identification of a significant volume of irrelevant email; and (2) It reduced the number of mailboxes to be searched from 117 to 50.  Plaintiffs would be allowed to choose which 50 mailboxes would be searched.

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Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007)

In this personal injury product liability case, plaintiffs sought production of the legal hold notice issued by defendant to its employees, among other categories of material. The court denied the request for the legal hold notice, concluding that it was not “reasonably calculated to lead to the discovery of admissible evidence.” The court explained:

The document Plaintiffs request is simply a description of material employees were instructed not to discard. In the Court’s experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation. This is not a document relating to the Defendant’s business. Rather, the document relates exclusively to this litigation, was apparently created after this dispute arose, and exists for the sole purpose of assuring compliance with discovery that may be required in this litigation. Not only is the document likely to constitute attorney work-product, but its compelled production could dissuade other businesses from issuing such instructions in the event of litigation. Instructions like the one that appears to have been issued here insure the availability of information during litigation. Parties should be encouraged, not discouraged, to issue such directives. Defendants are not required to produce these materials.

Quinby v. WestLB AG, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007)

In this opinion, the court modified its September 5, 2006 order (summarized here) which shifted to the plaintiff 30 percent of the costs of producing the emails of one witness (Barron) restored from backup tapes. After that prior order was entered, defendant submitted an affidavit from its vendor stating that 14 backup tapes had been restored in order to recover Barron’s emails, and that the total cost was $9,187.50. Plaintiff submitted a letter and exhibits in response, pointing out that the 14 tapes also contained the emails of other custodians whose emails were ordered produced and the tapes would, therefore, have had to have been restored in any event. Plaintiff argued that she should be responsible for only 30 percent of the share allocable to Barron’s emails.

The court agreed, and found it unfair to shift a portion of the entire cost since the backup tapes would have had to have been restored even if Barron’s emails had not been ordered produced. The court set out its formula for calculating plaintiff’s share of the cost, which amounted to $448, and ordered plaintiff to remit that amount to defendant within ten days.