Author - kgates

In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL 4208555 (E.D.N.C. Nov. 26, 2007)

In this decision, the district court adopted the Memorandum and Recommendation of Magistrate Judge James E. Gates which resolved a dispute centered around a subpoena issued in a case pending in the Southern District of Mississippi.  Plaintiffs in that case sued Forensic Analysis & Engineering Corp. ("FAEC") and others for alleged fraud related to investigation of plaintiffs’ insurance claims for damages caused by Hurricane Katrina.

In August 2007, the plaintiffs issued a subpoena duces tecum to nonparty Robert K. Kochan, a Virginia resident and the president of FAEC.  The subpoena directed Mr. Kochan to produce for inspection and copying the following information:

1.  As related or pertaining to Hurricane Katrina, to produce and permit inspection and copying through drive imaging, all electronically stored information created, stored or maintained on or after August 29, 2005, on any laptop computer ever utilized by Adam Sammis in the state of Mississippi at any time on or after August 29, 2005.  This request applies but is not limited to the laptop computer(s) utilized by Adam Sammis while working in the mobile R/V office Forensic Analysis & Engineering deployed to the Mississippi Gulf Coast before, on or after September 26, 2005; and

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Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007)

In this patent and licensing litigation, the court had previously ordered plaintiff to produce “development documents” related to the project at issue in the litigation.  According to defendant, plaintiff produced 1,737 pages of documents by the order’s deadline in February 2006, but then later produced more than 11,000 pages of new responsive documents in the final days of discovery in the fall of 2007.  Defendant argued that these late-produced documents fell squarely within the ambit of the court’s order and should have been produced 18 months earlier.  Defendant also argued that plaintiff had failed to meet its preservation obligations.

At his deposition, one of the key players employed by plaintiff testified that he was not specifically directed by plaintiff’s counsel to search for electronically stored documents; he was asked to produce “all documents” related to his research, and he produced only hard copy documents without examining his electronic files.  In addition, the witness stated that during 2005 the University changed the storage system for the archiving of electronically produced information, from a University-wide archiving system to a more localized, “individual computer” storage system.  As part of that process the witness reviewed his computer-stored information and preserved what he deemed was important.  Conversely, of course, and without guidance, he deleted what he viewed as unimportant.  He testified that, in that process, neither the University nor counsel directed that electronically stored information pertaining to the relevant project be preserved in any form.  Further, the University’s computer system was such that some emails would be automatically deleted “at some point” if not preserved.

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U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D. Fla. Nov. 26, 2007)

In this breach of contract case, plaintiff sought a protective order blocking the production of documents by a non-party in response to defendant’s subpoena.  The court found that plaintiff had not established good cause for the protective order, in part because the time frame of the requests was reasonable.  The court also noted that, because plaintiff’s 2004 emails were allegedly unavailable (discussed below), defendant had no other way to obtain some of the information.  The court thus denied the motion for protective order; it also denied the non-party’s motion to quash, which was based on general relevancy and (unsupported) undue burden arguments.

At the same time, defendant sought an order compelling plaintiff to produce the hard drives of certain employees for inspection by an independent expert, and to produce all responsive 2004 emails.  Defendant also sought various sanctions for plaintiff’s alleged failure to produce the material in accordance with the court’s prior order on the subject.

Plaintiff responded that it had produced all responsive documents in its possession.  However, it explained that, due to a computer error following a server change that occurred prior to litigation, its 2004 emails were "unloadable.”  It also claimed that it had no hard copies of any 2004 emails.  As such, plaintiff contended that it could not produce any 2004 emails.

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Parkdale Am., LLC v. Travelers Cas. and Sur. Co. of Am., Inc., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007)

In this case, Carolina corporations that manufacture and sell cotton yarn sought a declaratory judgment that, pursuant to an insurance contract, the defendant was obligated to defend and indemnify plaintiffs concerning claims in ten underlying antitrust lawsuits.  Plaintiffs also asserted state claims for breach of contract, bad faith denial of insurance claims, and unfair and deceptive trade practices.  The court in this opinion resolves a number of discovery disputes, one of which related to the production of email by plaintiffs.

Plaintiffs had raised an objection in their briefs to producing unidentified but admittedly non-privileged emails on the grounds of undue burden and expense ($20,000 to convert the emails into a searchable format).  However, at the hearing the parties’ counsel explained to the court that those emails were a key player’s emails which were subsequently produced at a lesser (and shared) cost.  When defense counsel argued that there was “very little useful information in those emails,” plaintiff’s counsel renewed plaintiffs’ objection as to other emails on the grounds of relevance and the burden and cost of searching them for privileged information.

The court cited Fed. R. Civ. P. 26(b)(2)(B) and 26(b)(2)(C), and found that the disputed discovery requests sought evidence that was relevant, and in some cases, “pivotal” to the issues in the case.  It stated: “In other words, absent a valid privilege or an undue burden or expense in production sufficient to override the Defendant’s right to conduct otherwise reasonable discovery, the Plaintiffs must respond fully to those discovery requests.”

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Smith v. Cafe Asia, 246 F.R.D. 19 (D.D.C. 2007)

Plaintiff was formerly employed as a host and waiter at Café Asia, a restaurant located in Washington, D.C.  Plaintiff claimed that he was the victim of discrimination based on his sexual orientation, and that he was the subject of assault and battery in the form of unwanted touching.  Among other things, plaintiff alleged that the kitchen staff routinely harassed him, that management tolerated and encouraged the verbal and physical harassment, and that one manager had sent him an email containing pornographic images portraying homosexual acts.  The defendant restaurant responded that all of the alleged incidents were welcomed, encouraged and instigated by plaintiff.

Defendant requested that it be permitted to inspect and make copies of images stored on plaintiff’s cell phone.  Defendant alleged that the images portray plaintiff’s genitalia at various states of arousal, and graphic images of other men purported to be plaintiff’s sexual partners.  Defendant argued that the images were relevant to whether plaintiff invited a hostile work environment and whether he was subjectively offended by defendant’s alleged conduct.

Plaintiff conceded that his cell phone contained “intimate, highly personal” and “unclothed images,” but denied having willingly shared the images with his co-workers.

Magistrate Judge John M. Facciola ruled that, balancing defendant’s need for the images against plaintiff’s valid privacy concerns, plaintiff would be required to preserve the images and permit inspection by one attorney designated by defendant only so far as necessary to fully inform its discovery and trial preparation. Read More

Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007)

In May 2007, the court entered an order granting plaintiff’s motion to compel discovery and directing defendant to supplement its discovery responses specifically with regard to electronically stored documents.  In its initial objections to the discovery requests, defendant had objected to the request that it produce records "as they are maintained in the ordinary course of business in their ‘native format,’ along with the intact metadata."  Specifically, defendant objected to the request as "unduly burdensome" and "impos[ing] obligations on Cumis beyond those permissible under the Federal Rules of Civil Procedure."  When defendant served the supplemental responses required by the court’s May order, it produced the material on CD-ROMs in readable PDF form, but did not include metadata or provide the material in native format.

Plaintiff moved for sanctions, arguing that the production violated the court’s May order.

The court concluded that, because its May order did not address the issue of metadata or "native format" files, it could not be said that defendant’s failure to produce that information was a violation of that order.  As such, there was no basis to sanction the defendant.  Further, after considering the submissions and arguments of the parties, the court found that defendant’s objections to the production of metadata were well founded, and clarified its May order to reflect that defendant shall not be required to produce its electronically stored documents in "native format" or to produce metadata. Read More

PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007)

Magistrate Judge Randolph F. Treece began his memorandum decision and order in this construction litigation with these introductory remarks:

With the rapid and sweeping advent of electronic discovery, the litigation landscape has been radically altered in terms of scope, mechanism, cost, and perplexity.  This landscape may be littered with more casualties than successes and the discovery imbroglio in this case is a prime example of this observation.  For nearly six months, the parties and the Court have been grappling with an electronic discovery monstrosity with the hope that it could be corralled and definitively resolved, thereby obviating the need for motion practice.  Alas, attempts to resolve the issue in lieu of briefs fell woefully beyond the parties’ grasp and, as the last straw, they have set the matter at our feet for appropriate resolution.

The parties’ electronic discovery dispute arose when numerous emails being produced by PSEG were “divorced” from their attachments due to a technical glitch in the software used by PSEG’s e-discovery vendor.  (None of the raw data had been lost, and all 750 gigabytes of unfiltered data remained intact and in its original format.)  Upon discovering the problem, the parties attempted to determine whether a reasonable solution was feasible.  However, it became apparent that remarrying the emails to their attachments would be “formidable and costly.”  A number of potential solutions were attempted, none of which proved successful.

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In re Nat’l. Security Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007)

In this brief order, Chief Judge Vaughn R. Walker granted plaintiffs’ motion for an order prohibiting the alteration or destruction of evidence during the pendency of the action.  Among other things, the court ordered:

Counsel are directed to inquire of their respective clients if the business practices of any party involve the routine destruction, recycling, relocation, or mutation of such materials and, if so, direct the party, to the extent practicable for the pendency of this order, either to

(1) halt such business processes;

(2) sequester or remove such material from the business process; or

(3) arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested.

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