Author - kgates

Starbucks Corp. v. ADT Security Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009)

In this recently released opinion written early last year, the defendant, ADT Security Services, Inc. (“ADT”), sought to avoid its obligation to produce archived emails by arguing the emails were not “reasonably accessible because of undue burden or cost,” as that term is used in Fed. R. Civ. P. 26(b)(2)(B).  In support of this position, ADT’s Manager of Information Technology, John Mitchell, provided various estimates regarding the potential cost of time and money to restore the requested email.  In response, the plaintiff, Starbucks Corporation (“Starbucks”), provided its own estimates of the potential cost which were significantly lower than those proffered by ADT.  Finding Mitchell had “at every turn, provided exaggerated reasons and exaggerated expenses as to why ADT allegedly cannot and should not be ordered to comply with its discovery obligations,” the court declined to find the information at issue “not reasonably accessible.”  Moreover, the court indicated that even had the information been deemed not reasonably accessible, the court would have found that good cause existed to order the production.  Accordingly, Starbuck’s motion to compel was granted.

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Cornwall v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio. Ct. App. Dec. 31, 2009)

In this wrongful death litigation, the trial court granted plaintiff’s motion to allow his forensic expert to create a mirror image of defendants’ hard drives.  Plaintiff asserted that examination of the drives would reveal evidence of defendants’ willful alteration or deletion of relevant evidence.  The court granted the motion despite defendants’ objections that such access would violate statutory and common law prohibitions against the disclosure of confidential medical information and that such access was not authorized under Fed. R. Civ. P. 34.  Defendants appealed.  On appeal, the order of the trial court was affirmed.

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TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009) (Unpublished)

In this case, defendant Arie Genger was held in contempt and found to have intentionally spoliated relevant documents in violation of a court order following his instruction to his personal IT consultant to wipe the unallocated space of his company’s computer system which his consultant then carried out.  Declining to impose terminating sanctions, the court instead ordered that Genger produce 10 documents previously subject to a claim of privilege, that the burden of persuasion as to Genger’s affirmative defenses and counter-claims be raised one level, that Genger was precluded from prevailing on any material factual issue by reason of his testimony alone, and that Genger pay for plaintiffs’ reasonable attorneys’ fees and expenses in the amount of $750,000.

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Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)

When responding to an email communication from his attorney, defendant mistakenly sent his message to a third party.  As a result, the email was eventually provided to opposing counsel in the litigation.  Plaintiff’s counsel refused to return the email upon defense counsel’s request and filed a motion for a protective order to which the email was attached.  Defendants then filed a motion to exclude plaintiff’s use of the email.  Defendant David Muhs explained that the mistaken transmission occurred when the autofill feature on his email program supplied the wrong address in place of that of the intended recipient.  Conducting its analysis pursuant to Fed. R. Evid. 502, the court determined that privilege had not been waived.

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G.K. Las Vegas Ltd. P’ship v. Simon Prop. Group, 2009 WL 4283086 (D. Nev. Nov. 30, 2009)

Following a determination that defendants participated in improper ex parte communications with an independent, court-appointed forensic expert and thus destroyed its impartiality, the district court held that defendants had forfeited their right to a forensic examination of plaintiffs’ relevant computer systems and modified its prior order to deny defendants’ motion for spoliation sanctions with prejudice.

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Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. 2009)

Plaintiff sustained injuries in an automobile accident that he alleged were caused in part by a defective seat design which allowed the seat to collapse.  The case went to trial and plaintiff was awarded $8,000,000.  The verdict was reversed on appeal for reasons related to plaintiff’s expert’s testimony and a new trial on the issue of liability was ordered.

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Costco Wholesale Corp. v. Superior Court, S163335 (Cal. Nov. 30, 2009)

In 2000, Costco hired outside counsel to provide legal advice regarding the applicability of certain wage and overtime laws to its warehouse managers.  In furtherance of providing such advice, counsel spoke with two managers Costco had made available to her.  Thereafter, she provided Costco with a 22-page opinion letter addressing the question at issue.  Several years later, plaintiffs in a class action against Costco sought to compel production of the relevant opinion letter arguing that the letter contained unprivileged information and that Costco had placed the contents in issue thereby waiving the privilege.

To resolve the question, the court ordered the letter be reviewed by a discovery referee who subsequently recommended production of the letter with heavy redactions.  The referee reasoned that the factual information therein was not privileged and that while interviewing the two managers, the attorney had acted not as an attorney but as a fact finder.  The trial court adopted the recommendation and ordered the letter produced.  On appeal (and without ruling on the merits of the trial court’s order or its decision to refer the letter to a discovery referee for review), the court affirmed the order reasoning that Costco had failed to establish that the production would cause irreparable harm.  The issue was appealed to the Supreme Court of California.

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