Catagory:Case Summaries

Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008)

In this case, one of plaintiff’s requests for production sought emails — plaintiff provided defendant with search terms and desired to have all emails that contained the relevant search terms.  Defendant complied with the request and produced approximately 75,000 pages of email documents on disk.  However, defendant designated the entire email production as Type C documents, “Attorney-Eyes-Only," pursuant to the parties’ agreed protective order. 

Plaintiff thereafter filed a motion to compel compliance with the protective order, and for sanctions.  At issue was whether defendant violated the terms of the parties’ protective order by designating all emails as “attorney eyes only,” and whether defendant should be required to re-produce the email in a different format.

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In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008)

In this decision, the district court adopted the Special Master’s Report and Recommendation concerning the Motion of AMD and Class Plaintiffs to compel Intel to produce notes of its counsel’s investigation interviews of designated employees concerning Intel’s compliance with its evidence preservation obligations (the “Weil Materials”).  The Weil Materials included notes taken during and after the custodian interviews, meeting notices, emails between attorneys regarding the interviews, etc.  The court ordered Intel to produce the requested Weil Materials, as redacted by the Special Master.

Intel’s Preservation Efforts

On June 27, 2005, AMD filed its complaint against Intel.  On the same date, upon learning of the filing of the complaint, Intel assembled a team to put into place a process to "identify and preserve relevant paper and electronic documents" across six different continents.  Intel described its document retention plan as being tiered and having multiple layers of retention, including:

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R & R Sails Inc. v. Ins. Co. of Pa., 251 F.R.D. 520 (S.D. Cal. 2008)

After a fire destroyed plaintiff’s manufacturing facility, defendant paid plaintiff for loss of property, but plaintiff claimed that the value of all lost property exceeded the amount paid.  Plaintiff also sought further payment under the insurance contract for loss of income, business interruption and extra expenses.  Plaintiff sued to enforce the contract, and also alleged bad faith in the handling of the claim.

In discovery, plaintiff noted that "conspicuously absent" from defendant’s production of documents were "electronic or handwritten daily activity records/logs which are generally kept with an adjuster’s notes and telephone call records.”   Defendant insisted that the documents did not exist.  During a discovery conference on the matter, the court expressed doubt as to the records’ nonexistence and ordered defendant either to produce the requested documents or submit a sworn declaration that the records did not exist.  Defendant thereafter submitted a sworn declaration from its senior property claims examiner (Lombardo) stating that "[t]here were no daily activity logs or telephone record logs that were created or maintained in connection with plaintiff’s claim."

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Johnson v. Wells Fargo Home Mortgage, Inc., 2008 WL 2142219 (D. Nev. May 16, 2008)

In this case, plaintiff alleged that defendant erroneously reported two of his real property mortgage loans delinquent to credit reporting agencies.  Plaintiff claimed that defendant foreclosed on one loan and continued to erroneously report both loans delinquent after plaintiff spent nine months making multiple phone calls and sending correspondence, including cancelled checks and loan documents, verifying the loans were current.

Defendant contended that plaintiff’s Fair Credit Reporting Act claim was supported with various letters he drafted on his two laptops and were “the very foundation of his claim.”  Defendant further contended that computer evidence revealed plaintiff may have manufactured the documents to support his claim and then flagrantly reformatted the hard drives on the laptops shortly after defendant informed him that they had been formally requested and were relevant to the case.

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Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008)

In this case, plaintiff sought a ruling that 165 electronic documents produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status.  The parties had previously agreed to a joint protocol to search and retrieve relevant ESI responsive to plaintiff’s Rule 34 requests.  The protocol contained detailed search and information retrieval instructions, including nearly five pages of keyword/phrase search terms aimed at locating responsive ESI.

In March 2007, defense counsel notified the court that individualized privilege review of the responsive ESI would delay production unnecessarily and cause undue expense.  To address this concern, defendants gave their computer forensics expert a list of keywords to be used to search and retrieve privileged and protected documents from the population of documents that were to be produced to plaintiff, and requested that the court approve a “clawback agreement” fashioned to address the concerns noted in Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005).  Later, when the discovery deadline was extended, defense counsel notified the court that defendants would be able to conduct a document-by-document privilege review, thereby making a clawback agreement unnecessary.  Following their privilege review, defendants produced responsive ESI in September 2007.

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Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008)

In this case, plaintiff (a lawyer) brought claims under the Ohio Consumer Sales Practices Act based upon emails he received.  Because only the unsolicited emails plaintiff received would support his claim under the Act, it was necessary for the parties to ascertain which of the emails plaintiff received were unsolicited.  Plaintiff’s computer systems contained the only available documentary evidence that could show the pathways taken by plaintiff to solicit the emails or the absence of those pathways.

Defendants requested an inspection of plaintiff’s computer systems so as to ascertain whether plaintiff’s efforts with respect to receiving the emails and visiting the websites (that were at the heart of the action) constituted a consumer transaction under the OCSPA, or whether plaintiff’s opening of the emails and any attempts to obtain free merchandise were part of a business designed to profit from email litigation

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In re Flash Memory Antitrust Litig., 2008 WL 1831668 (N.D. Cal. Apr. 22, 2008)

The court’s order, in its entirety, provides:

All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action.  The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action.  "Documents, data, and tangible things" shall be interpreted broadly to include writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes, electronic messages, voice mail, E-mail, telephone message records or logs, computer and network activity logs, hard drives, backup data, removable computer storage media such as tapes, discs and cards, printouts, document image files, Web pages, databases, spreadsheets, software, books, ledgers, journals, orders, invoices, bills, vouchers, check statements, worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films, charts, digital or chemical process photographs, video, phonographic, tape or digital recordings or transcripts thereof, drafts, jottings and notes, studies or drafts of studies or other similar such material. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition.  Until the parties reach an agreements on a preservation plan or the Court orders otherwise, each party shall take reasonable steps to preserve all documents, data, and tangible things containing information potentially relevant to the subject mater of this litigation.  In addition, counsel shall exercise all reasonable efforts to identify and notify parties and non-parties of their duties, including employees of corporate or institutional parties, to the extent required by the Federal Rules of Civil Procedure.

Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008)

In this decision, District Judge Robert S. Lasnik denied defendants’ motion for a protective order which asked the court to shift the costs of producing ESI to the plaintiff.  Relying on Fed. R. Civ. P. 26(b)(2), defendants argued that searching through their ESI would generate substantial costs and yield cumulative results.

Finding that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c), the court denied the motion on that basis.  The court then went on to consider the merits of the motion.  It found that defendants had also failed to demonstrate that plaintiff’s discovery requests were unduly burdensome and/or cumulative, or that the requested ESI was “not reasonably accessible because of undue burden or cost.”  The court explained:

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Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008)

In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information.  Plaintiff knew about the existence of the DSFG Reports because he had received a facsimile of the June 2004 DSFG Report before he was terminated.  The fax was sent anonymously but the fax number was from defendant’s Stamford, Connecticut office.  The June 2004 DSFG Report revealed that plaintiff was leading his division in sales performance.  After nine months of discovery, defendant had produced only four additional DSFG Reports.  In October 2007, plaintiff moved to compel production of the remaining seven DSFG Reports from the year prior to plaintiff’s termination.

The court held a telephone conference to discuss the motion to compel and the whereabouts of the seven remaining DSFG Reports.  During the conference the attorneys maintained their respective positions on the matter:  plaintiff’s attorney believed that the defense attorneys were hiding or had deleted the DSFG Reports, and defense counsel gave assurances that such reports could not be located.  The court proposed that defendant permit a forensic computer consultant to inspect its computers, to which the attorneys agreed.  The court entered an inspection order, which included the following provisions:

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ClearOne Communications, Inc. v. Chiang, 2008 WL 920336 (D. Utah Apr. 1, 2008)

This decision further refines the search protocol to be used to search data from computers used by certain defendants, which were imaged pursuant to two court orders issued in 2007.  The second imaging order sought to establish a protocol for searching the mirror images to identify relevant and responsive documents.  That protocol was refined in a November 5, 2007 order.  The protocol in place required keyword searches by technical experts; review of search result reports by defense counsel for facial claims of privilege; delivery of the reports to plaintiff’s counsel for preliminary assertion of responsiveness; defense counsel’s review for responsiveness and privilege; and delivery of documents and privilege logs.

The parties had agreed on many search terms.  Plaintiff had accepted, with five additions, the search terms proposed by defendants in September 2007.  The issue decided on this motion related to the five additional search terms proposed by plaintiff, and the conjunctive or disjunctive use of the terms in the searches to be conducted.

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