2008 – Page 25 – Electronic Discovery Law

To “Expedite the Flow of Discovery and Facilitate Prompt Resolution of Disputes”, Court Adopts Proposed Order Governing Electronic Discovery

Oct 23 2008

Star, Inc. v. QFA Royalties LLC, No. 07-cv-02223-WYD-CBS (D. Colo. Filed Oct. 10, 2007)

In this case, the court granted an unopposed motion of the defendant to enter an order governing electronic discovery. The proposed order adopted by the court was intended to “expedite the flow of discovery material and facilitate prompt resolution of disputes over production of electronic materials…” Included in the order was a provision requiring each party to identify an “e-discovery liaison” through whom all discovery requests and responses would be made as well as provisions providing instruction regarding search methodology, timing of discovery, format of production, privilege review, document retention and costs.

A copy of the motion and proposed order is available here.

A copy of the court’s order is available here.

Defendants Admit Destruction or Loss but Claim Good Faith, Court Denies Motion for Preservation Order and Spoliation Inquiry

Oct 21 2008

Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008)

In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence. Specifically, the plaintiff alleged that the government had destroyed relevant materials related to his detention, including recordings, and that the government had no uniform policy for preserving detainee interrogation recordings. Therefore, a preservation order was necessary to prevent further spoliation. The government maintained that such an order was unwarranted in light of the multiple preservation directives issued to ensure that evidence related to the plaintiff was preserved.

Finding “No Reason to Treat Websites Differently than Other Electronic Files,” Court Grants Adverse Inference for Failure to Preserve Website

Oct 21 2008

Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication)

In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions and sought an adverse inference in its favor. Specifically, plaintiff alleged spoliation of the contents of the defendants’ website as it existed at the time the dispute between the parties arose, and of a particular letter from the Bank of New York.

Court Denies Protective Order, Orders Allegedly Proprietary Data Produced Directly to Competitor

Oct 20 2008

In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008)

In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner. In July of 2000, the debtor contracted with MBP to handle the debtor’s billing. In February 2008, the debtor stopped doing business with MBP and started using Practice Resources Network, Inc. (PRN). After switching, the debtor requested that MBP provide the debtor with a copy of its billing data so the debtor could determine the status of its claims. MBP refused. Soon after filing for bankruptcy in March 2008, the debtor filed an expedited motion seeking copies of this data from MBP. MBP objected and filed a motion for a protective order.

Court Allows Subpoena Seeking Inspection of Plaintiff’s Mother’s Laptop, but Orders Defendant to Prepare Search Protocol and Pay Her Reasonable Costs

Oct 15 2008

Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D. La. 2008)

In this breach of contract case, Hoover moved to quash subpoenas issued by defendant to two non-parties: Hoover’s mother and Hoover’s former roommate. The subpoena issued to Hoover’s mother requested inspection of her laptop or any electronic storage device “for documents copied, sent to, or received by her son” related to several entities, including the defendant. The subpoena issued to the former roommate, Sanghani, also sought inspection of his laptop computer and any other electronic storage device or computer “that has any responsive documents.” The subpoena further requested documents, “whether in paper form or electronically submitted,” between Hoover and Sanghani that referred to specific persons or topics.

Court Orders Forensic Examination of Defendants’ Business and Home Computers, Articulating 20-Step Protocol

Oct 14 2008

Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008)

In this breach of contract case, plaintiffs alleged that defendants wrongfully obtained and used confidential information from former employee, Kenneth Fuston, who went to work for the defendants. Specifically, plaintiffs alleged that defendants used the information to hire approximately 20 of plaintiffs’ employees, open new offices in eight cities, and embark upon a new line of business in competition with plaintiffs. Plaintiffs moved to compel production of computers believed to contain information related to those claims. The court had previously granted a motion to compel and ordered defendants to produce emails to or from any current or former employee or customer of the plaintiff found on Fuston’s home computer and documents reflecting communication with the defendant and certain former employees of the plaintiff. Defendants produced 1,936 pages of email. Believing the production was incomplete, plaintiffs brought a second motion to compel.

Court Orders Party to Explain How Documents Produced in Digital Format Were Ordinarily Maintained

Oct 13 2008

Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008)

In this patent infringement case, the court addressed the issue of whether, in response to 72 separate document requests, the plaintiff’s production in digital format of 405,367 pages of documents, apportioned among 202 unlabeled folders and which through application of litigation support software could be made text searchable, but was otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they were maintained in the ordinary course of plaintiff’s business, satisfied the responding party’s obligations under Rule 34 of the Federal Rules of Civil Procedure. Plaintiff asserted that, pursuant to FRCP 34, it had produced the documents in the manner in which they were maintained in the ordinary course of business and therefore need not indicate to which request the documents were responsive. In support of its position, plaintiff offered only the statement of an attorney indicating that the documents had been assembled as they had been maintained.

Supreme Court of Ohio Adopts E-Discovery Amendments to Rules of Civil Procedure

Oct 10 2008

The Supreme Court of Ohio has adopted several amendments to the Ohio Rules of Civil Procedure, including several related to electronic discovery. The amendments, which took effect on July 1, 2008, include changes to Rules 16, 26, 33, 34, 37, and 45. According to the Supreme Court’s press release, key amendments include:

clarifying that issues related to electronically stored information are appropriate topics for resolution during pretrial conferences; clarifying that discovery of electronically stored information is permitted; amending to provide factors a judge should consider in determining sanctions when a party has destroyed potentially relevant electronically stored information; and specifying that a subpoena may be used to obtain electronically stored information from nonparties.

View Ohio’s amended rules here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

Governor Vetoes E-Discovery Amendments to California’s Civil Discovery Act

Oct 09 2008

On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California’s Civil Discovery Act . In his veto message, the Governor explained:

The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session. Given the delay, I am only signing bills that are the highest priority for California. This bill does not meet that standard and I cannot sign it at this time.

The amendments included in AB 926 closely tracked several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. Among other things, the amendments:

Court Denies Relief Where Party Ignored Court’s Suggestions for Reducing Volume of ESI Captured by Keyword Search: “Defendants Must Now Lie in the Bed that They Have Made”

Oct 03 2008

Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008)

In this case, Onex presented several motions to the court, including a motion for a protective order and for relief from the need to produce all documents identified after searching several backup tapes. The court denied in part and granted in part Onex’s motion, and ordered Onex to produce all identified documents, except for two specific categories deemed unlikely to contain relevant information.

Archive - 2008