Author - kgates

AAB Joint Venture v. United States, 75 Fed. Cl. 432 (Fed. Cl. 2007)

In this construction litigation involving claims for additional compensation based on differing site conditions, plaintiff moved to compel discovery.  Plaintiff noted that defendant had identified in its discovery responses numerous individuals who were active in the review of the project design, and who were known to have generated email related to the subject matter of the litigation.  However, defendant had produced few if any emails from these individuals, and for the six individuals for whom emails were produced, there were gaps in the production.

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School-Link Techs., Inc. v. Applied Res., Inc., 2007 WL 708213 (D. Kan. Feb. 28, 2007)

In this contract case, plaintiff sought entry of judgment and other sanctions based upon defendant’s failure to implement a litigation hold to preserve relevant documents in the custody of one of its key employees, and its alleged failure to search for and produce responsive documents. Magistrate Judge David J. Waxse granted the motion in part.
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Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 2007 WL 684001 (D. Colo. Mar. 2, 2007)

In this trademark infringement case, plaintiff sought various forms of relief for defendants’ alleged discovery violations, including the appointment of a special master (at defendants’ expense) who would be charged with evaluating defendants’ discovery production efforts and, if necessary, directing “completion of full and thorough efforts to locate and produce all documentation in all forms available.” Plaintiff also sought additional depositions on the issue of spoliation and attorneys fees and costs, among other things. The court denied most of the requests, but concluded that a $5,000 monetary sanction was appropriate based upon defendants’ failure to preserve the hard drives of departed employees and failure to confirm the accuracy and completeness of its discovery production.
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Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. 2007)

A previous e-discovery order in this case dated July 11, 2006, was summarized here. At that time, the parties had disagreed about whether certain additional emails existed. Magistrate Judge John M. Facciola had explained that the requested emails, “if they exist, could be located in one or more of several places: (1) Peskoff’s NextPoint Management email account; (2) the email accounts of other employees, agents, officers and representatives of the NextPoint entities; (3) the hard drive of Peskoff’s computer or any other depository for NextPoint emails, searchable with key words; (4) other places within Peskoff’s computer, such as its ‘slack space,’ searchable with the help of a computer forensic technologies; and (5) backup tapes of Mintz Levin’s servers.” In the previous order, the court had ordered defendant to submit an affidavit describing in detail the nature and scope of its search for responsive electronically stored information.

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Cenveo Corp. v. Slater, 2007 WL 442387 (E.D. Pa. Jan. 31, 2007)

In this case, plaintiff alleged that its former employees improperly used plaintiff’s computers, confidential information and trade secrets to divert business from plaintiff to defendants. In discovery, the parties disputed how and under what circumstances materials on hard drives in defendants’ possession would be produced to plaintiff. Plaintiff sought to use a mirror or digital imaging method, in which a digital image of the hard drives would be created and turned over to a third party forensic computer expert of plaintiff’s choosing, who would then search the image for relevant information. Plaintiff further proposed that, to avoid any disclosure of privileged information, defendants should provide a privilege log to plaintiff’s third party forensic expert, and that the forensics expert would be bound not to disclose any privileged information provided to him. Defendants, on the other hand, proposed that they create digital image of the hard drives in question and search that image using terms that plaintiff provided and defendants agreed upon. Defendants would then produce the results of the search to plaintiff, save any confidential or privileged information. Read More

Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 333987 (D. Minn. Feb. 1, 2007)

In this order, District Court Judge David S. Doty concluded that a discovery order issued by Magistrate Judge Jeanne J. Graham was neither clearly erroneous nor contrary to law. The January 4, 2007 discovery order required, among other things, that defendants produce responsive documents by February 2, 2007. Defendants had argued that, while certain documents that were responsive existed, the cost to retrieve them from an electronic archive may be prohibitive. The magistrate judge determined that defendants had not met their burden to establish that the information sought was “not reasonably accessible because of undue burden or cost” under Fed. R. Civ. P. 26(b)(2)(B):

Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here.

(January 4, 2007 Order, at p. 12.)

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Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007 (Unpublished)

In this case, plaintiff claimed that it inadvertently produced over 500 privileged emails that had been deleted from a single Lotus Notes DVD, but were nonetheless printed and produced by its outside e-discovery vendor. According to plaintiff, the privileged emails (and other non-responsive emails) had been segregated into subfolders, and these subfolders had been deleted prior to the submission of the DVD to a vendor for processing. Plaintiff blamed this inadvertent production on the fact that in the Lotus Notes application (as distinguished from Microsoft Outlook and other email platforms), even though emails had been moved and segregated into separately labeled subfolders, and said folders subsequently deleted, a copy of these emails still remained in the larger folder structure. As such, when Applied Discovery converted the emails from their native form into single page image files, the emails which plaintiff had allegedly segregated into a “privileged” subfolder, and subsequently deleted, actually remained in the larger folder structure, and were thus produced to the defendant.

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