eDiscovery Import – Page 211 – Electronic Discovery Law

Digene Corp. v. Third Wave Techs. Inc., 2007 WL 5731934 (W.D. Wis. July 27, 2007)

Dec 01 2007

Key Insight: Where plaintiff failed to produce emails alleged to contain too little relevant information to justify production costs, court declined to compel production unless defendant indicated willingness to bear 100% of cost, including privilege review; court indicated that upon defendant?s discovery of ?highly relevant, non-cumulative information,? court may require plaintiff to pay fraction of cost

Nature of Case: Patent infringement and antitrust claims

Electronic Data Involved: Emails

In re Gupta, 263 S.W. 3d 184 (2007)

Dec 01 2007

Key Insight: Appellate court denied petition for writ of mandamus where trial court appropriately ordered ?death penalty sanctions? (struck all pleadings) for defendant?s discovery violations including repeated failure to produce relevant information, repeated production of fraudulent materials, including diskettes and computers, and repeated false representations to the court; plaintiff filed three motions to compel and at least two motions for sanctions resulting in more than $60,000 in fines before imposition of ?death penalty sanctions? by trial court

Nature of Case: Fraudulent inducement, breach of contract, conversion

Electronic Data Involved: Computers, diskettes, ESI

Albertson v. Albertson, 73 Va. Cir. 94, 2007 WL 6013036 (Va. Cir. Ct. 2007)

Dec 01 2007

Key Insight: Where issuance of a court order granting defendant the authority to access plaintiff?s password protected files already in defendant?s possession did not require plaintiff to perform a testimonial act, court held plaintiff?s assertion of Fifth amendment right did not bar court from granting defendant?s motion

Nature of Case: Divorce

Electronic Data Involved: Password protected computer files

Cambrians for Thoughtful Dev., U.A. v. Didion Milling, Inc., 2007 WL 5618671 (W.D. Wis. Nov. 27, 2007)

Dec 01 2007

Key Insight: Rejecting plaintiff?s claims that work product protection extended only to documents prepared in anticipation of the ongoing litigation, court denied motion to compel email strings between attorney and employees of defendant prepared in anticipation of government enforcement action, especially where enforcement action and ongoing litigation were closely related, as was the case here

Nature of Case: Violations of Clean Air Act

Electronic Data Involved: Email

Puckett v. Tandem Staffing Solutions, Inc., 2007 WL 7122747 (N.D. Ill. Jun. 27, 2007)

Dec 01 2007

Key Insight: Court denied motion for sanctions but, despite prior production of the information in hard copy, ordered defendant to restore and re-produce information from backup tapes where the information was ?reasonably calculated to lead to the discovery of admissible evidence? and where defendant asserted that it?s ?documentation? was maintained in electronic form in the usual course of business, and ordered the parties to split the costs; court declined to compel defendant?s search of computers which ?may or may not have been utilized by plaintiff and his comparators? where requiring a search of an unknown number of computers in various offices with the possibility that no relevant individuals utilized them was unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: Backup tapes, computers

Wiley v. Paulson, 2007 WL 7059722 (E.D.N.Y. Sept. 26, 2007)

Dec 01 2007

Key Insight: Court denied motion to compel metadata associated with hard copy emails where government established the metadata was not reasonably accessible because of substantial and prohibitive burden and cost; court denied motion without prejudice leaving room for plaintiff to re-file her motion and establish a factual bases for her demand and noted that if such a motion were granted in future, plaintiff would bear the cost

Nature of Case: Employment litigation

Electronic Data Involved: Metadata associated with hard copy emails

Citizens for Consumers v. Abbott Labs., 2007 WL 7293758 (D. Mass. Mar. 14, 2007)

Dec 01 2007

Key Insight: Where plaintiff Nevada admitted its negligence in failing to institute a litigation hold which resulted in the loss of information (which the court stated was ?the same as destroying them?) and where the loss was prejudicial to the defendants because of their inability to discovery ?marginalia or annotations? or introduce Nevada?s copies of the documents, among other things, the court granted defendants? request to establish certain facts for purposes of the litigation

Nature of Case: Claims that defendants defrauded Nevada by manipulating average wholesale prices of prescription drugs

Electronic Data Involved: ESI

Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

Dec 01 2007

Key Insight: In this seminal case, District Court Judge Paul Grimm held that the failure of both parties to adhere to the rules of evidence precluded entry of summary judgment and discussed at length and in great detail the admissibility of electronically stored information

Nature of Case: Action to enforce a private arbitrator?s award

Electronic Data Involved: ESI

ISO Claims Servs., Inc., ACI Div. v. Appraisal.com, Inc., 2007 WL 809684 (M.D. Fla. Mar. 15, 2007)

Dec 01 2007

Key Insight: Where plaintiff argued that it was willing to produce documents that were the subject of defendant’s motion to compel, but had been waiting for a response from defense counsel as to how to best produce electronic documents (which formed the bulk of the production), court set date for production and expressed hope that “the parties will be able to work out how best to produce documents contained in electronic format on their own”

Electronic Data Involved: Electronic data

Memry Corp. v. Ky. Oil Tech., N.V., 2007 WL 832937 (N.D. Cal. Mar. 19, 2007) (not for citation)

Dec 01 2007

Key Insight: Court denied motion for access to defendant’s computer hard drives because computer content was not inextricably related to the basis of the lawsuit, defendant had represented that it conducted reasonable search of its computer hard drives for responsive information and moving party could point to only two missing emails out of thousands that were produced, and fact discovery had closed

Electronic Data Involved: Computer hard drives

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