Catagory:Case Summaries

In re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C. Cir. 2009)

In this case, the district court held defendants had sole authority to dictates search terms, per stipulated order, and sanctioned a third-party for failure to timely produce documents, despite significant efforts to comply with the deadline.  The Court of Appeals affirmed.

Individual defendants served a third-party subpoena on The Office of Federal Housing Enterprise Oversight (“OFHEO”), requesting production of over 30 categories of documents.  The court denied OFHEO’s subsequent motion to quash, and entered an order directing compliance.

The defendants then agreed to limit the requests for electronically stored information to emails stored on OFHEO’s network and backup tapes.  After the court granted several requests for an extension of time to comply, OFHEO finally produced what it represented were “all” relevant materials.  However, defendants later discovered that OFHEO failed to search all of its off-site disaster-recovery backup tapes.

Despite OFHEO’s voluntary agreement to conduct a search of these tapes, defendants moved to hold OFHEO in contempt.  Following a day of hearings on the issue, the parties entered into a stipulated order holding the contempt motions in abeyance and requiring OFHEO to conduct searches of its disaster-recovery back-up tapes and to produce those documents, as well as a privilege log, by a date certain.  Thereafter, a dispute arose requiring the court’s clarification that the stipulated order gave sole discretion to specify search terms to the defendants.  Despite OFHEO’s attempts to comply with the order, it indicated its inability to timely produce the required privilege logs.  Accordingly, defendants renewed their contempt motion.  The motion was granted and, as a sanction, OFHEO was ordered to produce a category of privileged material to defendants’ counsel for review, with the specific instruction that such production would not waive privilege.  OFHEO appealed.

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Micron Tech., Inc. v. Rambus, Inc., 255 F.R.D. 135 (D. Del. 2009)

In this case arising from Micron’s alleged infringement of Rambus’ patents, a bench trial was held on the issue of Rambus’ alleged spoliation of relevant documents pursuant to a document retention policy it had recently implemented.  The court ruled that Rambus had intentionally spoliated documents in bad faith.  As a sanction, the court declared the patents in suit unenforceable against Micron.

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Covad Comm. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008)

In this case arising from claims of misappropriation and conversion of trade secret information, plaintiff filed a motion to compel following a disagreement regarding the proper format of production of electronically stored information.  The defendant argued that because the plaintiff failed to specify a format of production, hard copy or .TIFF images were appropriate.  The plaintiff insisted on production in native format.  The court, indicating its displeasure with both parties, ordered production of the documents in their native format, but ordered the parties to split the cost of the necessary privilege review.

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Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346 (E.D. Pa. Dec. 11, 2008)

On the eve of trial in this case in which plaintiffs alleged trade secret theft, the court granted an extension “on urgent party request” so that additional discovery could be accomplished.  The discovery proved to be complex, and the court appointed a special master to manage the electronic discovery issues.  Thereafter, the parties negotiated a stipulation, approved by the court, which included a clawback procedure (“the Clawback Agreement”) to handle the return of privileged documents.  The Clawback Agreement provided that in the event of disclosure of a privileged document, the document was to be returned upon written demand.  If the recipient of the document wished to challenge the privilege claim, they were required to do so in writing, within five days of receipt of the demand for the document’s return.  The special master would then resolve the dispute following an in camera review.

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Sitterson v. Evergreen School Dist., 2008 WL 4981630 (Wash. Ct. App. Nov. 25, 2008)

In this case, plaintiff brought suit against the defendant, a school district (“the District”), for breach of contract and quantum meruit following termination of his contract as a financial advisor.  About one month after filing suit, plaintiff served his requests for production.  In response, the District produced approximately 439 pages of documents, including four confidential letters between the District and its attorney regarding the litigation.  Three years later and ten days before trial, plaintiff sent copies of his proposed exhibits to the District, including the four confidential letters.  The District objected to their admission on the first day of trial, arguing that they were protected by attorney-client privilege.  In response to a question from the trial court regarding his role in the production of the letters, the attorney for the District responded that the letters did “go through” him and he stated, “…I guess I just wasn’t thorough enough.”  The trial court denied the District’s motion to exclude. Eventually, the jury awarded plaintiff $151,000.

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Laethem Equip. Co. v. Deere & Co., 2008 WL 4997932 (E.D. Mich. Nov. 21, 2008)

In this case involving breach of contract and other claims, the court ordered the defendant to return inadvertently produced, privileged, electronically stored information (“ESI”) to the plaintiffs, and ordered the parties to secure all relevant ESI in their possession and file a written outline of the secured data (“data log”) with opposing counsel and the court.  Upon receipt of plaintiffs’ data log, defendant filed a motion to compel the production of all of the data outlined therein, to compel an explanation regarding allegedly spoliated, missing, or altered documents, for an order that all privilege as to the inadvertently produced documents had been waived as a result of plaintiffs’ “misconduct”, and for a finding that plaintiffs were in violation of the civil rules and a prior order of the court, among other things.  Some of these issues were referred to the magistrate judge for hearing and determination with all other issues reserved for a future hearing.

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Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008)

In this class action case alleging unlawful searches and seizures of plaintiffs’ homes, a discovery dispute arose regarding the production of metadata.  The court granted in part and denied in part plaintiffs’ request for the production of metadata for several types of electronically stored information (“ESI”) including email, word and excel documents, and databases.

On January 18, 2008, the parties agreed to undertake some discovery despite defendants’ pending motion to dismiss.  About that time, defendants began to collect relevant materials from its employees.  Plaintiffs served their first requests for production on February 15, 2008 but failed to address the form of production or metadata.  The issue was first mentioned by plaintiffs on March 18, 2008 but only “in passing.”  By this time, defendants had completed most of their collection efforts.  On March 22, 2008 plaintiffs requested the production of emails and other ESI in Tagged Imaged File Format (“TIFF”) with corresponding load files containing metadata fields and extracted text and that spreadsheets and databases be produced in native format.  The parties conferred on July 1, 2008 to discuss the format of production of ICE’s hierarchical databases.  On July 14, 2008, defendants objected to the production of ESI in the forms requested by plaintiffs on the grounds of relevance and burden, and proposed production in the form of searchable PDF instead.  Defendants also stated they would provide metadata for a particular document only where plaintiffs could demonstrate its relevance to their claims.  Despite several attempts, the parties were unable to reach agreement.  Thus, it fell to the court to address plaintiffs’ requests.

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