Archive - 2008

Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008)

In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired.  Defendant explained that another Equity employee had granted him permission to use the employee’s username and password to access a particular Equity computer system.  Defendant admitted that he had accessed the system some 18 times over a 90-day period, and had used his Macintosh computer to do it.

In November 2007, the district court issued a TRO prohibiting defendant from “accessing or attempting to access Equity Analytics, LLC’s data on Salesforce.com for any purpose.”  The judge initially struck from the TRO a requirement that defendant permit Equity to have a computer forensic expert examine his computer to ascertain:  (1) whether defendant accessed Equity’s confidential customer data and/or trade secrets; (2) whether the data has been forwarded to defendant’s new employer an Equity competitor; and (3) whether the data was purged or overwritten.  The parties subsequently agreed that a computer forensic specialist should be permitted to examine defendant’s Macintosh computer, but they could not reach agreement on the search protocol.

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City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)

The discovery dispute in this decision involved the City of Seattle’s request to have defendant Professional Basketball Club, LLC (“PBC”) search for and produce responsive emails for six of its eight members.  In January 2008, PBC produced approximately 150,000 emails from two members of PBC.  It objected to producing emails for the remaining six PBC members because such a search would “increase the universe exponentially” and would generally produce irrelevant documents.  The City moved to compel production of the requested emails.

The court first considered whether the requisite principal-agent relationship existed to establish that PBC had the legal right to obtain documents upon demand from its members.  The court analyzed PBC’s operating agreement under Oklahoma law, and concluded that the City had met its burden in establishing that PBC had “possession, custody, or control” over the at-issue documents for purposes of Fed. R. Civ. P. 34(a).

Next, the court found that the substance of the requested emails – information regarding the formation of PBC and the Sonics’ finances – may be relevant to the underlying issues.  Given the liberal discovery rules, the court declined to limit the City’s inquiry on relevancy grounds.  It stated that, whether such evidence warrants admissibility is a distinctly separate question that would be addressed at the appropriate time.

Finally, the court observed that the Federal Rules contemplate a specific requirement when a party objects to the production of electronically stored information, citing Fed. R. Civ. P. 26(b)(2)(B).  The court faulted PBC’s lack of specificity, stating that PBC had not explained why producing the emails at issue would be unnecessarily burdensome.  It continued:
 

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Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008)

In this employment discrimination case, the court had previously ordered defendant to produce computer-generated reports of attempts by its employees to access adult websites at two of its branches during the relevant time period.  Although the court had denied plaintiffs’ request for email messages with adult content, it gave plaintiffs the option to file a motion for reconsideration after they had been given an opportunity to obtain evidence regarding defendant’s burden of production.  This opinion addresses plaintiffs’ renewed motion, in which they requested that defendant produce “at a minimum, documents showing any emails of a sexual or gender derogatory nature sent from 1998 through 2006.”

Evidence relating to defendant’s burden was as follows:

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Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008)

In this case, plaintiff claimed that defendant wrongfully terminated her disability benefits in violation of ERISA.  Plaintiff also alleged that Hartford violated her right to privacy by causing its agent Dempsey Investigators to trespass onto her land and videotape her and her roommate through the kitchen window of plaintiff’s home.

When Hartford served its Rule 26(a)(1) initial disclosures, it indicated it was disclosing a copy of the administrative record related to plaintiff’s disability claim, and produced among other things copies of the claim file, electronic notes and surveillance videos conducted by Dempsey.  Due to what Hartford calls an "administrative oversight," the videos produced did not contain the footage of plaintiff in her kitchen.  Hartford later produced the “kitchen video” in a supplemental disclosure under Rule 26(e).  Hartford argued that it complied with its usual procedure and that a reasonable search was done, and that as soon as it discovered that the full video had not been disclosed it complied with Rule 26(e) and supplemented its earlier disclosure.

Plaintiff sought sanctions, alleging that Hartford failed to disclose the kitchen video in violation of Rule 26(a); that Hartford’s attorney certified Hartford’s initial and incomplete disclosure in violation of Rule 26(g); and that Hartford failed to produce the kitchen video in response to a particular request for production.  Plaintiff sought sanctions in the amount of the costs and attorney’s fees she spent taking the depositions of Dempsey witnesses and retaining the services of an expert.  She argued that she took these depositions and engaged this expert solely because defendant did not produce the kitchen video in a timely manner, and that she would not have otherwise engaged the expert, or taken the depositions.
 

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