Archive - 2008

R & R Sails Inc. v. Ins. Co. of Pa., 251 F.R.D. 520 (S.D. Cal. 2008)

After a fire destroyed plaintiff’s manufacturing facility, defendant paid plaintiff for loss of property, but plaintiff claimed that the value of all lost property exceeded the amount paid.  Plaintiff also sought further payment under the insurance contract for loss of income, business interruption and extra expenses.  Plaintiff sued to enforce the contract, and also alleged bad faith in the handling of the claim.

In discovery, plaintiff noted that "conspicuously absent" from defendant’s production of documents were "electronic or handwritten daily activity records/logs which are generally kept with an adjuster’s notes and telephone call records.”   Defendant insisted that the documents did not exist.  During a discovery conference on the matter, the court expressed doubt as to the records’ nonexistence and ordered defendant either to produce the requested documents or submit a sworn declaration that the records did not exist.  Defendant thereafter submitted a sworn declaration from its senior property claims examiner (Lombardo) stating that "[t]here were no daily activity logs or telephone record logs that were created or maintained in connection with plaintiff’s claim."

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Johnson v. Wells Fargo Home Mortgage, Inc., 2008 WL 2142219 (D. Nev. May 16, 2008)

In this case, plaintiff alleged that defendant erroneously reported two of his real property mortgage loans delinquent to credit reporting agencies.  Plaintiff claimed that defendant foreclosed on one loan and continued to erroneously report both loans delinquent after plaintiff spent nine months making multiple phone calls and sending correspondence, including cancelled checks and loan documents, verifying the loans were current.

Defendant contended that plaintiff’s Fair Credit Reporting Act claim was supported with various letters he drafted on his two laptops and were “the very foundation of his claim.”  Defendant further contended that computer evidence revealed plaintiff may have manufactured the documents to support his claim and then flagrantly reformatted the hard drives on the laptops shortly after defendant informed him that they had been formally requested and were relevant to the case.

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Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008)

In this case, plaintiff sought a ruling that 165 electronic documents produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status.  The parties had previously agreed to a joint protocol to search and retrieve relevant ESI responsive to plaintiff’s Rule 34 requests.  The protocol contained detailed search and information retrieval instructions, including nearly five pages of keyword/phrase search terms aimed at locating responsive ESI.

In March 2007, defense counsel notified the court that individualized privilege review of the responsive ESI would delay production unnecessarily and cause undue expense.  To address this concern, defendants gave their computer forensics expert a list of keywords to be used to search and retrieve privileged and protected documents from the population of documents that were to be produced to plaintiff, and requested that the court approve a “clawback agreement” fashioned to address the concerns noted in Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005).  Later, when the discovery deadline was extended, defense counsel notified the court that defendants would be able to conduct a document-by-document privilege review, thereby making a clawback agreement unnecessary.  Following their privilege review, defendants produced responsive ESI in September 2007.

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Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008)

In this case, plaintiff (a lawyer) brought claims under the Ohio Consumer Sales Practices Act based upon emails he received.  Because only the unsolicited emails plaintiff received would support his claim under the Act, it was necessary for the parties to ascertain which of the emails plaintiff received were unsolicited.  Plaintiff’s computer systems contained the only available documentary evidence that could show the pathways taken by plaintiff to solicit the emails or the absence of those pathways.

Defendants requested an inspection of plaintiff’s computer systems so as to ascertain whether plaintiff’s efforts with respect to receiving the emails and visiting the websites (that were at the heart of the action) constituted a consumer transaction under the OCSPA, or whether plaintiff’s opening of the emails and any attempts to obtain free merchandise were part of a business designed to profit from email litigation

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In re Flash Memory Antitrust Litig., 2008 WL 1831668 (N.D. Cal. Apr. 22, 2008)

The court’s order, in its entirety, provides:

All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action.  The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action.  "Documents, data, and tangible things" shall be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice mail, E-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, check statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition.  Until the parties reach an agreements on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation.  In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure.