December 2008 – Page 5 – Electronic Discovery Law

Flying J, Inc. v. TA Operating Corp., 2008 WL 5449714 (D. Utah Dec. 31, 2008)

Dec 01 2008

Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order

Nature of Case: Unlawful conspiracy to prevent and suppress competition

Electronic Data Involved: ESI on back up tapes

Brokaw v. Salt Lake County, 2008 WL 5449065 (D. Utah Dec. 30, 2008)

Dec 01 2008

Key Insight: Despite court?s acknowledgment of the requested data?s relevance, plaintiff?s offer to provide a technical expert to perform the search, and plaintiff?s proffer of at least three alternative search protocols, court denied plaintiff?s motion to compel a school district to search for specified terms in the databases of all its schools where court found that the proposed discovery imposed an excessive burden due to the district?s lack of technical resources and where plaintiff?s proposals failed to sufficiently lessen that burden

Nature of Case: Complaint alleges unreasonable seizure of high school student and use of excessive force resulting in permanent injuries

Electronic Data Involved: Computer databases at all school’s in district

Chevron U.S.A., Inc. v. M&M Petroleum Servs., Inc., 2008 WL 5423820 (C.D. Cal. Dec. 30, 2008)

Dec 01 2008

Key Insight: Where defendant offered plaintiff access to the relevant computer for analysis but where defendant had not yet provided access and had failed to confirm production of all responsive documents from all relevant computers pursuant to court order, court ordered defendant to make computer available within 15 days so that plaintiff?s expert might ?ascertain for itself whether all responsive documents have been produced or?whether any relevant information on the hard drive or drives have been destroyed, erased, or wiped? and to serve verified supplemental responses to discovery indicating ?a diligent search of every computer [at issue]?

Nature of Case: Complaint for declaratory relief pursuant to Petroleum Marketing Practices Act

Electronic Data Involved: Hard drives

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2008 WL 5423316 (S.D.N.Y. Dec. 31, 2008)

Dec 01 2008

Key Insight: Citing Aguilar v. United States Dep?t of Homeland Sec, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008), which stated: ?In the absence of an issue concerning the authenticity of a document or the process by which it was created, most metadata has no evidentiary value.?, court denied motion to compel production of metadata where plaintiff failed to show its relevance and made no claim that the documents had been improperly modified

Nature of Case: Claims arising from the Securities Exchange Act

Electronic Data Involved: ESI, metadata

MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 5381864 (E.D. Mich. Dec. 22, 2008)

Dec 01 2008

Key Insight: Despite their production?s compliance with Fed. R. Civ. P. 34, court ordered defendants to specifically identify documents responsive to particular requests where plaintiff could not ?easily locate the documents? responsive to those requests within the production; court ordered defendant to use search terms provided by plaintiffs, despite objections of burden and privilege, but ordered use of connector term ?and? rather than ?or? to return documents ?more responsive? to the requests; court declined to order forensic imaging of hard drive but ordered defendant?s expert to produce attorney?s eyes only report of examination of the hard drive to address specific concerns and to provide plaintiffs with a directory list for all defendant?s non-Altair computer hard drives

Nature of Case: Theft of trade secrets

Electronic Data Involved: ESI, email, hard drives

Arista Records LLC v. Does 1-14, 2008 WL 5350246 (W.D. Va. Dec. 22, 2008)

Dec 01 2008

Key Insight: Where a university responded to a subpoena seeking ?all documents and electronically-stored information relating to the assignment of the IP addresses? of unidentified, suspected copyright infringers by producing file logs identifying the dorm rooms associated with the IP addresses at issue and the MAC addresses of the devices used to access the internet, but where it could not provide the names to which the addresses were assigned because the rooms were shared, court denied motion to compel based on specific language of subpoena but permitted service of a third subpoena specifically seeking names of the residents of each room at issue

Nature of Case: Copyright infringement

Electronic Data Involved: Names of ISP subscribers

Keithley v. Homestore.com, 2008 WL 5234270 (N.D. Cal. Dec. 15, 2008)

Dec 01 2008

Key Insight: Rejecting each of defendant?s objections, court adopted Report and Recommendation of Magistrate Judge imposing monetary sanctions for discovery violations but did not adopt recommendation for adverse inference instruction because summary judgment in favor of defendant rendered issue moot

Nature of Case: Patent infringement

Electronic Data Involved: ESI, source code, document retention policies

U.S. v. Poulin, 592 F. Supp. 2d 137 (D. Me. 2008)

Dec 01 2008

Key Insight: Where defendant?s audio consultant identified potential inaccuracies between the audio tapes produced and the original recordings, and where the original recordings were subject to disclosure pursuant to Fed. R. Crim. P. 16, court granted plaintiff?s motion for access to the original Exxacom system recordings ?to confirm that the recordings?are faithful reproductions?; acknowledging defendant?s burden in re-production where many hours had already been spent, court observed, ?The Government?s burden is measured in hours; the Defendant?s in years.?

Nature of Case: Criminal production of child pornography

Electronic Data Involved: Audio recordings

Fox v. Riverdeep, Inc., 2008 WL 5244297 (E.D. Mich. Dec. 16, 2008)

Dec 01 2008

Key Insight: Where defendant breached its duty to preserve evidence by taking ?no steps whatsoever to preserve emails or documents? following receipt of a cease and desist letter, court ordered adverse inference instruction that missing documents were unfavorable to defendants but declined to impose requested sanction of default judgment absent a showing of bad faith

Nature of Case: Copyright infringement, breach of contract

Electronic Data Involved: Email

Koch Foods of Ala., LLC v. Gen. Elec. Capital Corp., 2008 WL 5264672 (11th Cir. Dec. 18, 2008)

Dec 01 2008

Key Insight: Court found no waiver of attorney-client privilege from inadvertent production where the privileged email was found tucked into a 37-page lease agreement contained in a 3,758 page production, where the email was included in the privilege log, and where plaintiff immediately asserted privilege upon learning of its disclosure; court acknowledged Alabama?s lack of controlling authority, but applied a totality-of-the-circumstances test reasoning that ?it would likely be adopted by the Alabama Supreme Court if confronted with the issue.?

Nature of Case: Conversion

Electronic Data Involved: Email

Archive - December 2008