Catagory:Case Summaries

Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008)

Plaintiff, an employee in the New York State Department of Environmental Conservation (“DEC”), alleged that defendants failed to promote him to the position of Captain in retaliation for having exercised his constitutional rights.  Plaintiff moved to compel the production of email between and among the parties, challenging the adequacy of defendants’ production.

Following oral argument on the motion, the court directed defendants to submit an affidavit describing the search undertaken to locate the requested emails.  In response, defendants filed an affidavit of the Director of the DEC’s Division of Information Services.  Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources.  Although the director evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than 12 months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit did not address what efforts, if any, were employed to search for such emails from accessible sources.  For example, the affidavit did not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.

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Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008)

In this trademark infringement litigation, defendant sought to compel Autotech to produce an electronic copy of a word processing document entitled “EZTouch File Structure.”  Autotech had already produced the document in both .PDF format on a compact disc and paper format, and had also provided a “Document Modification History” representing a chronological list of all changes made since the “EZTouch File Structure” document was created.  Defendant argued that the  production was not acceptable, because the document existed in its “native format” on a computer at Autotech’s offices in Bettendorf, Iowa.  Defendant wanted the “metadata” — information it claimed was within the electronic version of the document including when the document was created, when it was modified, and when it was designated “confidential.”

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Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008)

In this employment discrimination case, defendants sought a forensic examination of plaintiff’s home computers.  Defendants explained that the inspection would focus on information relating to Coburn’s employment with defendants, the termination of that employment, allegations or claims Coburn was making in this action, and damages resulting from the actions or inactions of defendants.  Plaintiff did not object generally to a “limited, focused” inspection, but opposed the request because defendants had not set forth a protocol or methodology that would protect her against violations of privilege, privacy and confidentiality interests.

The court found that the burden on plaintiff of such an inspection would be minimal.  It noted that defendants sought only a mirror image or “clone copy” of the hard drive or drives in question, and that defendants had agreed to bear the entire cost of the forensic inspection.  The court cited approvingly the protocol adopted in Playboy Enters., Inc. v. Welles, 60 F.Supp.2d 1050, 1054-55 (S.D. Cal.1999), finding that it offered “a suitable approach for protecting Coburn’s communications with her attorney, and her privacy interests as well as the confidentiality interests of her new employer.”

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Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008)

In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a "smear campaign" that destroyed plaintiff’s career as a securities analyst.  He asserted claims of defamation, tortious interference with prospective economic advantage and civil conspiracy.  In February 2006, as previously summarized here, Magistrate Judge James C. Francis, IV declined to enter a preservation order and ordered defendants to answer a “document retention questionnaire” and produce documents in native format.  In response that order, Biovail proceeded with the search protocol it had previously proposed, using the search terms (i) Treppel, (ii) Jerry, (iii) Bank of America, (iv) Banc of America, (v) BAS, and (vi) BofA.  Biovail searched the individual emails and files of certain key players, as well as the shared file drives of relevant departments.  It conducted the search by accessing certain backup tapes it had preserved, and images of the custodians’ hard drives.

Subsequently, plaintiff requested that Biovail expand its search for electronic documents by adding some 30 search terms and numerous individual custodians to the original search.  Biovail declined on the grounds that plaintiff’s request came too late and was overbroad.  Biovail produced the results of its search in May 2006.  After some additional discovery relating to Biovail’s preservation of electronic data, discovery closed in December 2007.

Plaintiff then moved for an order compelling Biovail to search for additional ESI and imposing sanctions, alleging that the defendants did not adequately preserve evidence.  Defendants opposed both applications, contending that their production was complete and that their steps to preserve evidence were sufficient.

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Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008)

In this case, the State of Texas sought a declaratory judgment and the court’s protection from a general litigation hold request, initiated by a letter sent by the City of Frisco.  The letter asked the Texas Department of Transportation to generally preserve all electronic data associated with a particular highway toll project, and referred to potential litigation regarding the environmental evaluation of the toll project.  The State speculated that the City would likely bring suit pursuant to the National Environmental Policy Act and the Administrative Procedures Act; however, at the time the complaint was filed, no claims had been brought.  Thus, the State asked the court to enter a declaratory judgment ruling that the City’s preservation letter "violates the Federal Rules of Civil Procedure and is contrary to rules governing a NEPA/APA claim in federal court."  The request for declaratory relief was the sole count made against the City of Frisco in the complaint.

The City of Frisco moved to dismiss, arguing that the State failed to plead the elements of any viable claim and was essentially asking the court for an advisory opinion concerning what action it must take to properly preserve those documents subject to the litigation hold.  The court agreed, and dismissed the complaint.  The court’s analysis is set out below:

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Flagg v. City of Detroit, 2008 WL 787061 (E.D. Mich. Mar. 20, 2008)

Plaintiff in this case is the minor son of a murder victim, whose murder remains unsolved.  The complaint alleges that the defendants engaged in a laxity in investigation, deliberately ignored and actively concealed material evidence, and deprived the plaintiff of an opportunity to bring a wrongful death suit against the murderer.

In a separate order on March 20, 2008, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of certain text messages.  The court found that the plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City of Detroit (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel.  The court observed that the relevance (and hence discoverability) of the text messages necessarily turned upon the content of the communications.  Thus, it was essential to establish a procedure for the review of the content of each such communication.  Moreover, because a communication might be relevant, but not subject to discovery, e.g., protected by a privilege, the court stated that the procedure must be capable of addressing such issues and objections to production.

Accordingly, the court issued this order establishing a protocol for review and production of text messages, and assigning two magistrate judges to perform the review.
 

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In re World Trade Ctr. Disaster Site Litig., 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008)

This litigation concerns claims relating to respiratory injuries suffered by rescue and clean-up workers as a result of exposure to toxins and other contaminants in the aftermath of the September 11, 2001 terrorist attacks.  Approximately 10,000 cases are before the court.

In this decision, the court approved the Special Masters’ recommendation that Technology Concepts & Design, Inc. ("TCDI") be retained to build, maintain and operate a database, to store the “Core Discovery” that the parties had begun to produce, and will continue to produce, pursuant to the court’s “Core Discovery Order" of November 27, 2007.  The court explained that the “Core Discovery” will create a substantial amount of information, including insurance data from scores of contractors and subcontractors, and basic details concerning each plaintiff’s claim.  The court continued:

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Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 538 F. Supp. 2d 1032 (N.D. Ohio 2008)

In this case, an automobile dealer brought suit alleging that DaimlerChrysler had breached a settlement agreement when it refused to grant the dealer a Chrysler franchise.  During the two years of discovery that followed, Schmidt alleged that DaimlerChrysler knowingly and intentionally destroyed relevant evidence.  Specifically, Schmidt alleged that DaimlerChrysler failed to implement a litigation hold to prevent the destruction of evidence after the complaint was filed in October 2004, and replaced or altered certain employees’ hard drives days before Schmidt made forensic images of the drives as part of its discovery process.  Further, Schmidt alleged that DaimlerChrysler attempted to hide the extent and significance of its misconduct.  As a result, Schmidt sought to add a spoliation of evidence claim to the litigation.

The court observed that, under Ohio law, the elements for a spoliation of evidence cause of action are:

1) … pending or probable litigation involving the plaintiff; 2) knowledge on the part of the defendant that the litigation exists or is probable; 3) willful destruction of the evidence by the defendant designed to disrupt the plaintiff’s case; 4) disruption of the plaintiff’s case; and 5) damages proximately caused by the defendant’s actions.

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Xpel Techs. Corp. v. Am. Filter Film Distribs., 2008 WL 744837 (W.D. Tex. Mar. 17, 2008)

In this brief order, the magistrate judge granted plaintiff’s motion for expedited computer forensic imaging, finding that good cause had been established.  The magistrate judge ruled that the costs of the forensic imaging would be borne by the plaintiff, and articulated a number of protocols for the parties to follow:

• Computer forensic analysis will be performed by Digitalworks, located at 13333 N. Central Expy., Ste. 201, Dallas, Texas 75243 (the "Forensic Examiner").
• All Forensic Examiners utilized must agree in writing to be bound by the terms of this Order prior to the commencement of their services.
• Within two days of this Order or at such other time agreed to by the parties, defendants shall make its Computer(s), Server(s), and any other electronic storage devices located at Defendants’ place of business at 1385 Westpark Way, Euless, Texas, including but not limited to Brett Wassell’s laptop, which may be located at a different location, available to the Forensic Examiner to make mirror images of those devices as set out below:
   

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Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008)

In this case involving claims of misappropriation of trade secrets, defendants objected to an order of a magistrate judge requiring them to disclose "forensically sound" images of certain data storage devices (Thermax’s India and Michigan servers) to plaintiffs’ counsel without any limitation as to the scope of the disclosure or prior filtering for privileged or work-product materials that the images might hold.  The production was required to permit a determination of whether defendants had violated an earlier stipulation and order that had imposed an ongoing obligation on defendants to return to plaintiffs any of plaintiffs’ files in their possession, and then to purge such files from their possession, custody and/or control.

The magistrate judge’s order had issued in the context of a dispute around the deposition of Stephen Wolfe, an employee of Huron Consulting Group, a computer forensic services firm relied on by defendants for both testifying and consultative expert work.  Wolfe testified that, at Thermax’s direction, he had performed two distinct tasks.  The first was to produce an expert report regarding whether an array of plaintiff’s information identified by plaintiff’s expert was located on a discrete set of data storage devices, after performing all necessary searches of images of the devices.  This set of devices did not include the India or Michigan servers.  The second task was to conduct electronic searches of images of Thermax’s India and Michigan servers for evidence of plaintiff’s files therein (which, in accordance with the parties’ earlier stipulation and order, already should have been disclosed to plaintiffs and purged).  The two tasks were different in several ways, as each task involved searches of different devices, with the searches involved in the former task providing the exclusive basis of Wolfe’s expert report, and the searches of the India and Michigan servers not informing his report in any respect.  In other words, Wolfe performed the former task in his capacity as a testifying expert, and performed the latter task in his capacity as a consulting expert.

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