December 1, 2011 – Page 3 – Electronic Discovery Law

Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2011 WL 2297661 (D. Colo. June 9, 2011)

Dec 01 2011

Key Insight: Court denied request for taxation of costs related to conversion of documents into electronic format for discovery purposes where defendant failed to establish that the conversion costs were ?necessarily incurred in the case preparation?; court denied motion for taxation of costs related to creation of secure database in furtherance of responding to a legitimate discovery request where the court was not authorized to award such costs pursuant to the relevant statute and where it was unaware of authority allowing adjustments to the division of costs based on undue burden, an argument that was available ?during the discovery process?

Electronic Data Involved: Conversion of ESI

B&B Hardware, Inc. v. Fastenal Co., No. 4:10CV00317 BRW/JTR, 2011 WL 2115546 (E.D. Ark. May 25, 2011)

Dec 01 2011

Key Insight: Addressing discovery issues ?looming on the horizon? court indicated that there appeared to be no basis to require defendant to forensically image at-issue hard drives and, addressing whether defendant would be required to restore and review backup tapes which it claimed could cost $84,854,704. 90 (a number the court called ?absurdly high? on its face), found that it would be difficult for plaintiff to meet the seven factor test for good cause and that defendant had sufficiently objected to plaintiff?s request such that arguments that the backup tapes were not reasonably accessible had not been waived

Electronic Data Involved: Forensic image of hard drives, backup tapes

Adams v. Allianceone, Inc., No. 08-CV-248-JAH (WVG), 2011 WL 2066617 (S.D. Cal. May 25, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendants? production in PDF format where plaintiff?s failed to request a specific format of production; where PDF format was ?reasonably usable? in light of the problems with the native format; where Rule 34 advisory committee notes allow for the translation of electronic data to allow production in a reasonably usable format; where there was ?insufficient evidence? to suggest that the data was converted from its native format to hinder plaintiff?s search ability; and where defendant ended up producing the native data to plaintiff?s satisfaction after conferring

Electronic Data Involved: ESI

In re Reserve Fund Secs. & Derivative Litig., Nos. 09 MD.2011(PGG), 009 Civ. 4346(PGG), 2011 WL 2039758 (S.D.N.Y. May 23, 2011)

Dec 01 2011

Key Insight: Addressing question of existence of marital privilege as to messages sent and received on work computers, court found that employee had no reasonable expectation of privacy in light of employer?s policy regarding email use and that emails were not protected

Electronic Data Involved: Potentially privileged emails

Chevron Corp. v. E-Tech Int., No. 10cv1146-IEG (WMc), 2011 WL 1898908 (S.D. Cal. May 19, 2011)

Dec 01 2011

Key Insight: The court denied defendant’s Motion for Reconsideration of the court?s order allowing forensic examination of the at issue hard drive by a neutral forensic examiner where defendant failed to meet the standard for reconsideration

Electronic Data Involved: Mirror image of hard drive

Velocity Press Inc. v. Key Bank, N.A., No. 2:09-CV-520 TS, 2011 WL 1584720 (D. Utah April 26, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for sanctions where at-issue emails were deleted prior to when defendant?s duty to preserve attached; court?s analysis included consideration of when duty to preserve arose and found that some communications from plaintiff may have ?hinted at potential claims to certain employees? but did not ?directly threaten litigation? and that the duty to preserve was triggered later, upon receipt of the summons and complaint

Electronic Data Involved: Emails, ESI

Graff v. Haverhill N. Coke Co., No. 1:09-cv-670, 2011 WL 1630045 (S.D. Ohio Mar. 24, 2011)

Dec 01 2011

Key Insight: Where, by comparing the time taken to respond to other requests, defendant established that responding to the requests at issue would be unduly burdensome (requiring an estimated 1,000 to 1,600 hours) and where plaintiff failed to provide ?any particular showing ? of the benefit to be obtained from such information?, the court denied plaintiff?s motion to compel

Electronic Data Involved: ESI, email

Quality Inv. Props. Santa Clara, LLC v. Serrano Electric, Inc., No. C 09-5376 LHK (PSG), 2011 WL 1364005 (N.D. Cal. Apr. 11, 2011)

Dec 01 2011

Key Insight: Where parties failed to meet and confer Pursuant to Rule 26(f) and thus failed to agree on format of production, and where plaintiff?s production was not in the format maintained in the usual course of business or organized and labeled according to the categories in the discovery requests, court ordered re-production of plaintiff?s ESI in a format agreed upon by the parties

Electronic Data Involved: ESI

In re Facebook PPC Adver. Litig., No. C09-03043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

Dec 01 2011

Key Insight: Despite Facebook?s assertions that an ESI protocol was unnecessary and that there was no basis to require rigid up-front requirements, court cited the ?clear thrust of discovery-related rules, case law, and commentary? suggesting that communication among counsel is critical and ordered parties to meet and confer to establish protocol to establish the format of production, search terms, etc.; court ordered re-production of any ESI already produced in non-searchable formats and prohibited Facebook?s further use of Watchdox.com to make ESI available to plaintiffs where the method was unduly burdensome to plaintiffs (in light of Facebook?s control of the documents, ability to track what was reviewed, etc.) and where parties previously agreed to a protective order which provided sufficient protection to the documents at issue

Electronic Data Involved: ESI

Nissan N. Am., Inc. v. Johnson Electric N. Am., Inc., No. 09-CV-11783, 2011 WL 1002835 (E.D. Mich. Feb. 17, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for a protective order and ordered production of confirmation the locations searched for responsive ESI; production of plaintiff?s backup policies and tracking records; production of plaintiff?s document retention policy; and production of a data map to show the age and location of data on plaintiff?s systems

Electronic Data Involved: Information related to plaintiff’s computer systems

Archive - December 1, 2011