Author - kgates

EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010)

The EEOC, on behalf of two claimants, filed claims alleging sexual harassment.  In the course of discovery, defendant sought production of claimants’ internet social networking site (“SNS”) profiles and other communications from claimants’ Facebook and MySpace.com accounts.  Plaintiff resisted.  Following its discussion of the “General Principles Applicable to Discovery of SNS” and the proper scope of discovery in the present case, the court determined that certain content was relevant and ordered plaintiff to produce the relevant information, subject to the guidelines identified by the court.

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Phillip M. Adams & Assoc. LLC v. Winbond Elec. Corp., 2010 WL 2977228 (D. Utah July 21, 2010)

In March 2009, the court granted in part plaintiff’s motion for sanctions and ordered the parties to present evidence of prejudice before crafting an appropriate sanction.  See, Phillip M. Adams & Assoc., LLC v. Dell, Inc.,621 F. Supp. 2d 1173 (D. Utah 2009).  Following analysis of plaintiff’s “minimal evidence”, the court concluded it was “not clear that ASUS spoliated evidence.”  The court nonetheless made clear the insufficiency of defendant’s preservation efforts, particularly with regard to original source code.  Accordingly, the court declined to order terminating sanctions, but indicated that plaintiff would be allowed to argue to the jury that “ASUS should have the original source code to a program that it both patented and attempted to patent for many years” and that “[t]he jury will consider these facts and draw their inferences.”

Rajala v. McGuire Woods LLP, 2010 WL 2949582 (D. Kan. July 22, 2010)

Plaintiff, as Bankruptcy Trustee, brought suit against defendant, alleging several claims.  The parties could not agree on the entry of a clawback provision. Accordingly, defendant moved the court to enter such a provision.  Upon establishing its authority to enter such an order pursuant to Fed. R. Civ. P. 26(c)(1) and analysis of the relevant facts, the court granted the motion, with modification, and indicated that a separate order setting forth a clawback provision would be entered.

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Aliki Foods, LLC v. Otter Valley Foods, Inc., 726 F. Supp. 2d 159 (D. Conn. 2010)

Defendant moved to dismiss plaintiff’s claims as a sanction for discovery violations.  Finding that plaintiff “acted willfully and in bad faith in repeatedly violating its discovery obligations and [the] Court’s orders”, including failing to timely respond to discovery despite a court order to do so and defying a court order to allow forensic examination of certain hard drives by giving its computers away without first searching them, the court granted defendant’s motion.

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In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 2010 WL 2901798 (C.D. Cal. July 20, 2010)

On July 20, 2010, the District Court entered an Order for the Preservation of Documents and Tangible Things which was submitted by the parties.  The order, which addresses only the preservation of documents and not relevance, discoverability, or admissibility, includes sections entitled:  “Documents and Tangible Items Required to be Preserved”, “Documents Not Required to be Preserved”, “Permissible Modifications and Alterations of Documents”, and “Implementation and Modification of Order”.  Additionally, an attachment to the order provides a lengthy (though not exhaustive) list of items to be retained.

Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010)

In this matrimonial action, plaintiff sought access to her husband’s (the defendant) office computer to determine his true financial condition.  After denying plaintiff’s initial motion, the court directed (by stipulated order) that a clone of defendant’s office hard drive be made at plaintiff’s expense.  Thereafter, the court denied plaintiff’s motion for access to the cloned drive upon finding her request for unrestricted access overbroad.  “Equally important” to the court was plaintiff’s failure to propose any protocol for investigation of defendant’s hard drive.  The court instructed that should the plaintiff wish to renew her motion, her renewal “must contain a detailed, step-by-step discovery protocol that would allow for the protection of privileged and private material.”  Moreover, the court provided detailed instruction for what such a protocol should contain:

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Multiven, Inc. v. Cisco Sys., Inc., 2010 WL 2813618 (N.D. Cal. July 9, 2010)

Observing that plaintiff and counterdefendants had insisted upon “a review process that guarantees that they will not finish this extensive project in any reasonable amount of time”, namely reviewing large volumes of information without first narrowing the material using search terms, the court acknowledged the need to expedite production and directed plaintiff and counterdedendants to retain a third party vendor to assist in their discovery efforts.  Accepting defendant’s offer, the court further ordered that Cisco would bear half the cost.

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Olson v. Sax, 2010 WL 2639853 (E.D. Wis. June 25, 2010)

Citing a lack of evidence that defendants “engaged in the ‘bad faith’ destruction of evidence for the purpose of hiding adverse evidence” and Fed. R. Civ. P. 37(e), the court denied plaintiff’s motion for sanctions for defendants’ destruction of relevant videotape, despite the existence of a duty to preserve.

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Takeda Pharm. Co., Ltd. v. Teva Pharm. USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010)

Defendants sought production of electronically stored information for a period of 18 years – a significant departure from the default period of five years previously imposed.  Upon plaintiffs’ showing that retrieval of the additional data by a vendor would cost approximately $1 million to $1.5 million (not including the cost of review), the court found the information was “not reasonably accessible”.  However, the court also found that defendants had shown good cause to compel the requested production.  Considering the relevance of the data and its possible unavailability from an alternative source as well as plaintiffs’ costs from producing the ESI, the court reasoned that “in relation to the importance of the interest at stake … including the likely very substantial financial stakes, [the] costs may be justified.”  Accordingly, the court granted defendants’ motion to compel and held that if plaintiffs employed an outside vendor to assist in fulfilling their obligation, defendants would bear 80 percent of the reasonable vendor costs incurred.