Archive - January 2009

S.E.C. v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009)

In this case, arising from claims of securities fraud, the court addressed questions concerning the government’s discovery obligations in civil discovery.  Throughout discovery in the case, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information.  Following extensive analysis of the individual issues, the court ultimately concluded that “[w]hen a government agency initiates litigation, it must be prepared to follow the same discovery rules that govern private parties…”

Read More

Lake v. City of Phoenix, 207 P.3d 725 (Ariz. Ct. App. 2009)

In this case, the Arizona Court of Appeals upheld a superior court ruling denying plaintiff’s motion to compel production of metadata associated with documents previously produced pursuant to Arizona’s Public Records Law.

In late 2006, after filing an Equal Employment Opportunity Complaint against the city, plaintiff submitted a series of public records requests.  The city’s subsequent production contained hard copy versions of electronic documents responsive to his request for all notes “documenting supervisory performance” within the relevant time frame.  Plaintiff suspected the notes had been backdated and requested production of the metadata associated with each document.  The city refused arguing that the requested metadata was “not maintained by the city and was not available,” and that metadata was not a public record.  In response, plaintiff brought a special action before the district court. Finding it lacked jurisdiction to hear the matter, the superior court denied plaintiff’s motion to compel.  Plaintiff appealed, and the appellate court affirmed the superior court’s ruling denying the production of metadata.

Read More

In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009)

In this case, the district court held defendants had sole authority to dictates search terms, per stipulated order, and sanctioned a third-party for failure to timely produce documents, despite significant efforts to comply with the deadline.  The Court of Appeals affirmed.

Individual defendants served a third-party subpoena on The Office of Federal Housing Enterprise Oversight (“OFHEO”), requesting production of over 30 categories of documents.  The court denied OFHEO’s subsequent motion to quash, and entered an order directing compliance.

The defendants then agreed to limit the requests for electronically stored information to emails stored on OFHEO’s network and backup tapes.  After the court granted several requests for an extension of time to comply, OFHEO finally produced what it represented were “all” relevant materials.  However, defendants later discovered that OFHEO failed to search all of its off-site disaster-recovery backup tapes.

Despite OFHEO’s voluntary agreement to conduct a search of these tapes, defendants moved to hold OFHEO in contempt.  Following a day of hearings on the issue, the parties entered into a stipulated order holding the contempt motions in abeyance and requiring OFHEO to conduct searches of its disaster-recovery back-up tapes and to produce those documents, as well as a privilege log, by a date certain.  Thereafter, a dispute arose requiring the court’s clarification that the stipulated order gave sole discretion to specify search terms to the defendants.  Despite OFHEO’s attempts to comply with the order, it indicated its inability to timely produce the required privilege logs.  Accordingly, defendants renewed their contempt motion.  The motion was granted and, as a sanction, OFHEO was ordered to produce a category of privileged material to defendants’ counsel for review, with the specific instruction that such production would not waive privilege.  OFHEO appealed.

Read More

Micron Tech., Inc. v. Rambus, Inc., 255 F.R.D. 135 (D. Del. 2009)

In this case arising from Micron’s alleged infringement of Rambus’ patents, a bench trial was held on the issue of Rambus’ alleged spoliation of relevant documents pursuant to a document retention policy it had recently implemented.  The court ruled that Rambus had intentionally spoliated documents in bad faith.  As a sanction, the court declared the patents in suit unenforceable against Micron.

Read More

Covad Comm. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008)

In this case arising from claims of misappropriation and conversion of trade secret information, plaintiff filed a motion to compel following a disagreement regarding the proper format of production of electronically stored information.  The defendant argued that because the plaintiff failed to specify a format of production, hard copy or .TIFF images were appropriate.  The plaintiff insisted on production in native format.  The court, indicating its displeasure with both parties, ordered production of the documents in their native format, but ordered the parties to split the cost of the necessary privilege review.

Read More