Key Insight: Where source code had probative value and would be covered by protective order, court ordered defendant to produce it and suggested that parties coordinate to limit its disclosure to only specified experts and individuals at Metavante with requisite technical expertise needed to effectively evaluate the source code
Nature of Case: Breach of contract
Electronic Data Involved: Source code
Key Insight: Where nonparty stated that in-depth electronic search would need to be conducted in order to produce responsive documents, thus resulting in substantial cost to nonparty, court ordered nonparty to provide plaintiff with estimate of cost and explanation of fees, with copy to court, before embarking on search so plaintiff could decide whether she wished nonparty to proceed; court further ruled that plaintiff must pay nonparty’s compilation fees before delivery of documents to plaintiff
Nature of Case: Union member alleged that union breached its duty of fair representation
Electronic Data Involved: Unspecified ESI
Key Insight: Finding that administrative judge abused his discretion in refusing to compel production of relevant email, and given defendant?s ?lax attitude? towards compliance with plaintiff?s discovery requests, court vacated final decision of Board and remanded case to Board, to be remanded to administrative law judge with directions to order defendant to promptly produce all relevant emails and to assure that all relevant personnel either had already, or will promptly, produce all relevant emails; if such production of email resulted in further evidence to support Baird’s theory, administrative judge to afford Baird another hearing
Nature of Case: Civilian employee at Army hospital sought review of Merit Systems Protection Board final decision sustaining her termination for having failed random drug test
Electronic Data Involved: Email
Key Insight: Where court had earlier ruled that defendant could recover attorney fees and costs relating to motion to compel and forensic inspection of plaintiff?s computer servers, court denied defendant?s subsequent request for $944,902 in attorneys? fees and instead awarded $105,000 as reasonable amount of attorneys? fees incurred; court further ordered plaintiff to pay neutral computer expert only for fees directly related to forensic inspection and not for those related to defendant’s advocacy in the action
Nature of Case: Misappropriation of intellectual property
Electronic Data Involved: Computer servers
Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner
Nature of Case: Breach of contract, account stated, open account, and unjust enrichment
Electronic Data Involved: Computer hard drives of plaintiff’s employees
Key Insight: Where defendant certified that he had deleted any and all of plaintiff’s proprietary information from his computer and stipulated to plaintiff’s requested relief, court ordered that a mutually acceptable representative of plaintiff be allowed to examine defendant’s computer to confirm permanent deletion of proprietary information
Nature of Case: Misappropriation of confidential and proprietary information
Electronic Data Involved: Recruiting firm’s database; computer hard drive
Key Insight: Where requesting party complained that information generated and produced in response to agreed-upon keyword search of ?Goldmine? database was inadequate and not rectified by index of customer information documents subsequently provided, and that additional information (such as dates) was needed, court ordered parties to confer about how date information could be retrieved and granted motion to compel only to the extent that requesting party?s consultant would be allowed to run his original protocol to determine if date information should have been produced in conformity with that protocol; costs to be borne by requesting party unless it appeared that date information had been wrongly withheld, in which case responding party would bear all of the costs, expenses and attorneys’ fees resulting from nonproduction of the information
Nature of Case: Trademark infringement
Electronic Data Involved: Goldmine customer relations management database
Key Insight: Court issued a number of discovery rulings, among them an order requiring AstraZeneca to produce communications between members of the Benefit/Risk Team for Seroquel; court reasoned: “Given the scope of this litigation, requiring a limited number (even 100) of known individuals to search for significant information is not an undue burden.”
Nature of Case: Drug product liability
Electronic Data Involved: Email
Key Insight: Sixth Circuit affirmed district court’s entry of default judgment and subsequent default award of $3,430,983.69 damages plus costs and attorneys’ fees as sanction for defendant’s egregious discovery abuse; among other things, defendant failed to comply with Parties? Agreed Order regarding electronic discovery, replaced company computers despite pending litigation, refused to produce home computer even though he admitted it had been used for business purposes, refused to produce key player?s computer, and failed to turn over all electronic evidence
Nature of Case: Fraud and RICO claims
Electronic Data Involved: Hard drives, email
Key Insight: Where emails and other documents stored on backup records were destroyed after complaint was filed, but reasons defendant began destroying such outdated mainframe reel-to-reel tapes at that time were (1) to reduce storage costs of up to $4,000 per year and (2) because data on tapes was no longer readable, and decision to destroy the unusable tapes not made by anyone who had anything to do with plaintiff, court concluded evidence did not support drawing any adverse inference from defendant?s intentional destruction of potentially probative evidence
Nature of Case: Claim for violation of FMLA
Electronic Data Involved: Emails stored on outdated mainframe reel-to-reel tapes
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