Case Summaries – Page 315 – Electronic Discovery Law

In Ongoing Sanctions Dispute, Protective Order Limits Access to and Uses For Production, and Clarifies No Waiver by Production Pursuant to Self-Defense Exception

Nov 19 2008

Qualcomm Inc. v. Broadcom Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008)

At trial in this case, Broadcom made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications. Qualcomm’s claimed lack of participation in the JVT was a core element of its claims for patent infringement against Broadcom. Judge Brewster referred the discovery aspects of that motion to Magistrate Judge Major and then issued an Order on Remedy for Finding of Waiver based on his determination that Qualcomm’s attorneys had participated in a sequence of discovery misconduct throughout the litigation process. However, because those attorneys had not had an opportunity to be heard before the order was issued impugning their behavior and in order to afford them an opportunity to be heard on the potential imposition of attorney sanctions, the court issued an Order to Show Cause Why Sanctions Should not be Imposed.

Miscommunication about Search Terms Leads to Defendants’ Refusal to Produce Thousands of Documents, Court Declines to Compel Production without Showing of Some Benefit to Plaintiff

Nov 10 2008

Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008)

In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production. Plaintiff identified and provided the key words to the defendant.

The first key words list contained 120 terms. After efforts to ensure the search would be productive, including converting certain files to a different format, Abercrombie ran the search. There were many hits. To reduce the volume, plaintiffs crafted a revised list of 123 terms. Another search was run and when the results came in, the parties agreed that some data sets from among the results would be reviewed and produced. Abercrombie produced those documents. The parties also agreed that further refinements of the search would be necessary to cut down the remaining results. Accordingly, plaintiff’s counsel sent 6 additional terms to Abercrombie to be run in proximity to other specified terms.

Finding Defendants’ Proposed Search Protocol “Fundamentally Misguided,” Court Creates Own and Orders Search of “Any Depository” that May Contain the Information Sought

Nov 06 2008

D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.D.C. Oct. 2008)

In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery. Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested. At the hearing, a representative of the defendants explained that plaintiff’s computer was “scrapped after he decided that it could not be used and also searched for items requested by plaintiff.” A representative also testified regarding additional searches performed to respond to plaintiff’s requests and explained the “Legato system,” a server which held a back up of plaintiff’s mailbox from 2004, made under order of the Justice Department in a separate matter. Defendants agreed to allow plaintiff’s expert to perform an in-person search of their servers, but the parties were unable to agree upon a protocol to guide that search.

Magistrate Judge Recommends Default Judgment in Favor of Plaintiffs and for Defendants to Pay “All Reasonable Costs” Related to Discovery Dispute

Nov 05 2008

Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008)

In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions. Specifically, plaintiffs alleged egregious spoliation of defendant Klein’s laptop. Suspicion of spoliation initially arose when Klein resisted the court’s order to allow his laptop and other computers to be copied, and was later exacerbated because when the laptop was finally produced it was “hot to the touch and a screw was missing from its hard drive enclosure.” In light of these facts, the court appointed a forensic expert to examine the evidence for spoliation and provide a detailed report.

Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs

Nov 05 2008

Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008)

In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests. One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement. Under the agreement, Metavante was to provide Emigrant with an online direct banking product called EmigrantDirect.

Emigrant argued that access to the source code may provide information about the quality of the product and was therefore relevant and properly discoverable. Metavante argued that its production would be unduly burdensome because it would cost over $300,000 and take over 5,000 hours to produce. Metavante also argued that the code would provide little relevant information. Emigrant responded arguing that Metavante’s estimates assumed a need to sort and compile all of the information before disclosing it and suggested it could mitigate the cost to Metavante by providing the code to outside consultants for inspection and a determination regarding relevance. The court found that the source code was relevant and, citing Emigrant’s offer to use outside consultants, found that “[i]n balancing the value of the source code against the burden of producing it…the potential value outweighs the burden.” The court also noted that any confidentiality concerns were addressed by its previously issued protective order.

Recognizing Danger of Loss, Court Orders Expedited Discovery Including Copying of Defendants’ Hard Drives

Oct 30 2008

Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008)

In this defamation case, plaintiffs sought an order allowing expedited discovery. Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc., an Internet service provider and non-party to the action, for information related to the claims in the case and the potential identification of Doe Defendants. Plaintiffs also sought an order allowing them to take images of the hard drives of any computer owned or used by the named defendants for the preservation of electronically stored information related to the claims in the case and the potential identification of Doe Defendants.

Court Declines to Require Plaintiff to Designate Specifically Confidential Portions of Documents during Discovery where Entire Document does not Rise to that Level

Oct 28 2008

Containment Tech. Group, Inc. v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008)

In this defamation case, the parties disagreed over the scope of a protective order sought by plaintiff prior to production of proprietary information, among other things. The parties attempted to negotiate the terms of such an order, but could not agree on several issues, including whether only portions of documents should be designated as “confidential” if the entire document did not rise to that level. Under the parties’ proposed terms, materials designated “confidential” would have automatically been sealed if filed with the court.

Court Highlights Cooperation Requirements of Discovery under Rule 26, Rules Objections Waived for Failure to Be Specific, and Orders Meet and Confer to Resolve Remaining Disputes

Oct 23 2008

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

In this employment case, plaintiffs filed several motions to compel supplemental responses to their extensive discovery requests after defendants allegedly failed to adequately respond. The case was eventually referred to Chief United States Magistrate Judge Paul Grimm for the purpose of resolving all of the discovery disputes.

In the initial review of defendants’ objections to the requests, the court noted “an obvious violation” of Federal Rule 33(b)(4) and “facially apparent violations” of Federal Rule 33(b)(2) which require that objections to interrogatories and requests for production be laid out with specificity or else they are waived. Moreover, the court suggested that the defendants’ failure to be particular in their objections “suggested a probable violation” of Federal Rule 26(g)(1) which requires a reasonable inquiry prior to objecting to an interrogatory or document request. Accordingly, the court scheduled a hearing to address the issues.

Defendants Admit Destruction or Loss but Claim Good Faith, Court Denies Motion for Preservation Order and Spoliation Inquiry

Oct 21 2008

Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008)

In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence. Specifically, the plaintiff alleged that the government had destroyed relevant materials related to his detention, including recordings, and that the government had no uniform policy for preserving detainee interrogation recordings. Therefore, a preservation order was necessary to prevent further spoliation. The government maintained that such an order was unwarranted in light of the multiple preservation directives issued to ensure that evidence related to the plaintiff was preserved.

Finding “No Reason to Treat Websites Differently than Other Electronic Files,” Court Grants Adverse Inference for Failure to Preserve Website

Oct 21 2008

Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication)

In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions and sought an adverse inference in its favor. Specifically, plaintiff alleged spoliation of the contents of the defendants’ website as it existed at the time the dispute between the parties arose, and of a particular letter from the Bank of New York.

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