Author - kgates

DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Defendants and non-party Huron Consulting Services, LLC could not agree on the proper course of discovery.  After protracted communications consisting of accusations and demands, defendants sought to compel Huron to conduct additional searches for responsive ESI.  The court found that some additional searching was warranted and ordered counsel to meet and confer in person to establish the proper scope.  Citing the parties’ failure to cooperate as a “controlling factor” as to cost-shifting, the court ordered the parties to split the costs, with one exception.

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United States v. Warshak, 631 F.3d 266 (6th Cir. Dec. 2010)

In this lengthy opinion, the court considered the question of whether an account holder has an expectation of privacy as to the contents of his emails.  Answering in the affirmative, the court held that “a subscriber enjoys a reasonable expectation privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP’” and that “the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”

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Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)

Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff.  Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*

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Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010)

In this case, the parties stipulated to a Confidentiality Order requiring that business information exchanged during the course of discovery would be returned or destroyed at the end of litigation.  Relying on the agreement, defendants provided access to “their core business secrets.”  When the case settled, plaintiff’s counsel discovered that defendants’ information had been backed up to “numerous back-up tapes” on their law firm’s computer system.  Plaintiff then sought to modify the confidentiality agreement to allow the firm to retain the information “subject to proposed safeguards designed to protect the confidentiality of the information” in light of the cost of deleting the information from the tapes.  The motion was denied and plaintiff appealed.

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In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010)

On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting an amendment to Wis. Stat. § 804.01 prohibiting parties from engaging in electronic discovery until after the parties confer regarding several specified issues.  The rule states that “[n]o party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court …”  The mandated issues for discussion include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of the proposed discovery and the extent to which such costs shall be limited, among other things.  If a party fails to participate or if agreement cannot be reached, judicial intervention may be sought.  The purpose of such a rule, as expressed in its attendant note, is to “manage the costs of the discovery of electronically stored information.”

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Victor Stanley, Inc. v. Creative Pipe, Inc. ("Victor Stanley II")

As previously summarized on this blog, defendant Mark Pappas, President of Creative Pipe, Inc., was ordered to “be imprisoned for a period not to exceed two (2) years, unless and until he [paid] to Plaintiff the attorney’s fees and costs that will be awarded…” as a sanction for willful, bad faith discovery violations which the Magistrate Judge ruled would be treated as contempt of the Court.  On defendants’ appeal, the District Court Judge declined to adopt the Magistrate Judge’s order regarding incarceration:

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Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010)

Addressing defendant’s motion for sanctions, the court found that although “plaintiffs did not engage in model preservation of electronically stored information in this case,” they were not subject to sanctions absent evidence that any relevant information had actually been destroyed.  Significantly, in reaching this decision, the court took issue with certain aspects of the often-cited Pension Committee decision issued in the same jurisdiction earlier this year as well as with the discovery standard of “reasonableness and proportionality” set forth in another cited opinion, Rimkus v. Cammarata.

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