Archive - 2008

Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008)

In this decision, District Judge Robert S. Lasnik denied defendants’ motion for a protective order which asked the court to shift the costs of producing ESI to the plaintiff.  Relying on Fed. R. Civ. P. 26(b)(2), defendants argued that searching through their ESI would generate substantial costs and yield cumulative results.

Finding that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c), the court denied the motion on that basis.  The court then went on to consider the merits of the motion.  It found that defendants had also failed to demonstrate that plaintiff’s discovery requests were unduly burdensome and/or cumulative, or that the requested ESI was “not reasonably accessible because of undue burden or cost.”  The court explained:

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Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008)

In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information.  Plaintiff knew about the existence of the DSFG Reports because he had received a facsimile of the June 2004 DSFG Report before he was terminated.  The fax was sent anonymously but the fax number was from defendant’s Stamford, Connecticut office.  The June 2004 DSFG Report revealed that plaintiff was leading his division in sales performance.  After nine months of discovery, defendant had produced only four additional DSFG Reports.  In October 2007, plaintiff moved to compel production of the remaining seven DSFG Reports from the year prior to plaintiff’s termination.

The court held a telephone conference to discuss the motion to compel and the whereabouts of the seven remaining DSFG Reports.  During the conference the attorneys maintained their respective positions on the matter:  plaintiff’s attorney believed that the defense attorneys were hiding or had deleted the DSFG Reports, and defense counsel gave assurances that such reports could not be located.  The court proposed that defendant permit a forensic computer consultant to inspect its computers, to which the attorneys agreed.  The court entered an inspection order, which included the following provisions:

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ClearOne Communications, Inc. v. Chiang, 2008 WL 920336 (D. Utah Apr. 1, 2008)

This decision further refines the search protocol to be used to search data from computers used by certain defendants, which were imaged pursuant to two court orders issued in 2007.  The second imaging order sought to establish a protocol for searching the mirror images to identify relevant and responsive documents.  That protocol was refined in a November 5, 2007 order.  The protocol in place required keyword searches by technical experts; review of search result reports by defense counsel for facial claims of privilege; delivery of the reports to plaintiff’s counsel for preliminary assertion of responsiveness; defense counsel’s review for responsiveness and privilege; and delivery of documents and privilege logs.

The parties had agreed on many search terms.  Plaintiff had accepted, with five additions, the search terms proposed by defendants in September 2007.  The issue decided on this motion related to the five additional search terms proposed by plaintiff, and the conjunctive or disjunctive use of the terms in the searches to be conducted.

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Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008)

Plaintiff, an employee in the New York State Department of Environmental Conservation (“DEC”), alleged that defendants failed to promote him to the position of Captain in retaliation for having exercised his constitutional rights.  Plaintiff moved to compel the production of email between and among the parties, challenging the adequacy of defendants’ production.

Following oral argument on the motion, the court directed defendants to submit an affidavit describing the search undertaken to locate the requested emails.  In response, defendants filed an affidavit of the Director of the DEC’s Division of Information Services.  Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources.  Although the director evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than 12 months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit did not address what efforts, if any, were employed to search for such emails from accessible sources.  For example, the affidavit did not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.

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Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008)

In this trademark infringement litigation, defendant sought to compel Autotech to produce an electronic copy of a word processing document entitled “EZTouch File Structure.”  Autotech had already produced the document in both .PDF format on a compact disc and paper format, and had also provided a “Document Modification History” representing a chronological list of all changes made since the “EZTouch File Structure” document was created.  Defendant argued that the  production was not acceptable, because the document existed in its “native format” on a computer at Autotech’s offices in Bettendorf, Iowa.  Defendant wanted the “metadata” — information it claimed was within the electronic version of the document including when the document was created, when it was modified, and when it was designated “confidential.”

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Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008)

In this employment discrimination case, defendants sought a forensic examination of plaintiff’s home computers.  Defendants explained that the inspection would focus on information relating to Coburn’s employment with defendants, the termination of that employment, allegations or claims Coburn was making in this action, and damages resulting from the actions or inactions of defendants.  Plaintiff did not object generally to a “limited, focused” inspection, but opposed the request because defendants had not set forth a protocol or methodology that would protect her against violations of privilege, privacy and confidentiality interests.

The court found that the burden on plaintiff of such an inspection would be minimal.  It noted that defendants sought only a mirror image or “clone copy” of the hard drive or drives in question, and that defendants had agreed to bear the entire cost of the forensic inspection.  The court cited approvingly the protocol adopted in Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1054-55 (S.D. Cal.1999), finding that it offered “a suitable approach for protecting Coburn’s communications with her attorney, and her privacy interests as well as the confidentiality interests of her new employer.”

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Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008)

In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a "smear campaign" that destroyed plaintiff’s career as a securities analyst.  He asserted claims of defamation, tortious interference with prospective economic advantage and civil conspiracy.  In February 2006, as previously summarized here, Magistrate Judge James C. Francis, IV declined to enter a preservation order and ordered defendants to answer a “document retention questionnaire” and produce documents in native format.  In response that order, Biovail proceeded with the search protocol it had previously proposed, using the search terms (i) Treppel, (ii) Jerry, (iii) Bank of America, (iv) Banc of America, (v) BAS, and (vi) BofA.  Biovail searched the individual emails and files of certain key players, as well as the shared file drives of relevant departments.  It conducted the search by accessing certain backup tapes it had preserved, and images of the custodians’ hard drives.

Subsequently, plaintiff requested that Biovail expand its search for electronic documents by adding some 30 search terms and numerous individual custodians to the original search.  Biovail declined on the grounds that plaintiff’s request came too late and was overbroad.  Biovail produced the results of its search in May 2006.  After some additional discovery relating to Biovail’s preservation of electronic data, discovery closed in December 2007.

Plaintiff then moved for an order compelling Biovail to search for additional ESI and imposing sanctions, alleging that the defendants did not adequately preserve evidence.  Defendants opposed both applications, contending that their production was complete and that their steps to preserve evidence were sufficient.

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