Archive - 2008

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008)

In this case arising out of a homeowner’s insurance claim, defendants sought a protective order to prevent plaintiff from inquiring into various topics during defendants’ Rule 30(b)(6) depositions.  One topic was to be:  “Knowledge concerning the storage, preservation and backup of emails relating to claims authored or received by Susan Yeckley, Gilbert Friedmann and Alice Barron as well as any other adjusters who handled Plaintiff’s claims.”

Defendants argued that the information sought in this topic was irrelevant to whether defendants breached plaintiff’s insurance policy or acted in bad faith while adjusting his claim.  Defendants further stated that, to their knowledge, "all emails between Plaintiff and [Defendants] have been disclosed.”

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Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)

In a previous decision, Magistrate Judge John M. Facciola addressed the sufficiency of the search done by defendant Michael Faber for emails and other ESI in response to plaintiff’s discovery requests, and determined that it was "appropriate to ascertain the cost of forensic testing of the computers and server at issue to see if it justifies a forensic search of them."  Peskoff v. Faber, 244 F.R.D. 54, 63 (D.D.C. 2007).  The parties submitted a joint bid proposal, which the court distributed to numerous vendors.  Three bids were received, the lowest of which was $33,000.  When the parties failed to reach agreement on how to share that cost, the matter was submitted again to Judge Facciola for resolution.

The court noted it had already determined that the Rule 26(b)(2)(C) factors weighed strongly in favor of the discovery, since the information sought was highly relevant, not duplicative, and could not be obtained from other sources.  The court then addressed the cost of the forensic search, and observed that it was not a situation “where the anticipated cost of doing the forensic search will dwarf the final recovery,” given that Mr. Peskoff was demanding $2.5 million.  The court concluded that, when balancing the cost of the forensic examination against the factors favoring the discovery, good cause existed to compel the forensic examination.

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Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008)

In this case, Daimler sued its former employee in Oregon district court for breach of his duty of loyalty, his confidentiality contract, and his common law duty not to convert confidential and proprietary information, based upon the employee’s departure and subsequent employment by a competitor, Cascadia.  As part of that suit, Daimler served Cascadia with the third-party discovery requests at issue.  The parties resolved most of their disagreements, but were unable to resolve Daimler’s request to search Cascadia’s computers for communications between Younessi and Jim Hebe (a former CEO of Daimler who was subsequently employed by Cascadia) and between Hebe and other Daimler employees.  Cascadia moved to quash the subpoena and for a protective order because Daimler’s subpoena was both unduly burdensome and would require disclosing confidential trade secrets to a competitor.

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S. New England Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82 (D. Conn. 2008) (Second Amended Ruling)

In this case, plaintiff (“SNET”) alleged that Global NAPS, Inc. had misrouted long-distance traffic of certain circuits not designated for such traffic, thereby depriving SNET of applicable access charges, and that Global failed to pay SNET access charges specified in SNET’s federal tariff for special access circuits Global ordered from SNET’s tariff.  In May 2006, the court granted SNET’s Motion for a Prejudgment Remedy in the amount of $5.25 million.  At the same time, the court ordered Global to disclose assets sufficient to secure the prejudgment remedy within two weeks.  Global’s failure to comply with the court’s order evolved into a two-year discovery battle over Global’s financial records.

In December 2006, SNET filed an Amended Complaint, which added additional defendants affiliated with Global.  SNET’s Amended Complaint alleged that the defendants’ corporate structure was a "sham,” and sought to hold the defendants collectively liable for the underlying allegations set forth in SNET’s original Complaint against Global.

In this opinion, the court found that the defendants willfully violated the court’s discovery orders by failing to turn over their general ledgers and other business records, lied to the court about the inability to obtain documents from third parties, and destroyed and withheld documents that were within the scope of the discovery requests and the court’s discovery orders.  Among other things, defendants:

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John B. v. Goetz, 2008 WL 2520487 (6th Cir. June 26, 2008)

In this case, state defendants sought mandamus relief from two discovery orders issued by the district court during the course of the class-action litigation.  The district court had issued the orders after a discovery dispute arose regarding defendants’ duty to preserve and produce ESI relevant to the litigation.  In the first order, the district court directed plaintiffs’ computer expert and a court-appointed monitor to inspect the state’s computer system and the computers of 50 key custodians to ascertain whether any relevant information has been impaired, compromised, or removed.  The second order denied reconsideration of the first order and directed that the first order be executed forthwith.  Both orders allowed plaintiffs’ computer expert to make forensic copies of the hard drives of identified computers, including not only those at the work stations of the state’s key custodians, but also any privately owned computers on which the custodians may have performed or received work.  The orders also directed the U.S. Marshal, or his designated deputies, to accompany plaintiffs’ computer expert to ensure full execution of the orders.

The Sixth Circuit entered an emergency stay of implementation of the orders on December 7, 2007, which was previously summarized here.

In this decision, the Sixth Circuit concluded that certain aspects of the district court’s November 15 and 19 orders constituted a “demonstrable abuse of discretion.”  Accordingly, it granted, in part, defendants’ petition for mandamus and set aside those provisions of the district court’s orders that required the forensic imaging of state-owned and privately owned computers, including the provisions that required the U.S. Marshal or his designee to assist plaintiffs’ computer expert in the execution of the orders.

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Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008)

In this case, one of plaintiff’s requests for production sought emails — plaintiff provided defendant with search terms and desired to have all emails that contained the relevant search terms.  Defendant complied with the request and produced approximately 75,000 pages of email documents on disk.  However, defendant designated the entire email production as Type C documents, “Attorney-Eyes-Only," pursuant to the parties’ agreed protective order. 

Plaintiff thereafter filed a motion to compel compliance with the protective order, and for sanctions.  At issue was whether defendant violated the terms of the parties’ protective order by designating all emails as “attorney eyes only,” and whether defendant should be required to re-produce the email in a different format.

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In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008)

In this decision, the district court adopted the Special Master’s Report and Recommendation concerning the Motion of AMD and Class Plaintiffs to compel Intel to produce notes of its counsel’s investigation interviews of designated employees concerning Intel’s compliance with its evidence preservation obligations (the “Weil Materials”).  The Weil Materials included notes taken during and after the custodian interviews, meeting notices, emails between attorneys regarding the interviews, etc.  The court ordered Intel to produce the requested Weil Materials, as redacted by the Special Master.

Intel’s Preservation Efforts

On June 27, 2005, AMD filed its complaint against Intel.  On the same date, upon learning of the filing of the complaint, Intel assembled a team to put into place a process to "identify and preserve relevant paper and electronic documents" across six different continents.  Intel described its document retention plan as being tiered and having multiple layers of retention, including:

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