Case Summaries – Page 323 – Electronic Discovery Law

Court Sets Protocol for Production of ESI by Non-Party Individual

Dec 03 2007

In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL 4208555 (E.D.N.C. Nov. 26, 2007)

In this decision, the district court adopted the Memorandum and Recommendation of Magistrate Judge James E. Gates which resolved a dispute centered around a subpoena issued in a case pending in the Southern District of Mississippi. Plaintiffs in that case sued Forensic Analysis & Engineering Corp. ("FAEC") and others for alleged fraud related to investigation of plaintiffs’ insurance claims for damages caused by Hurricane Katrina.

In August 2007, the plaintiffs issued a subpoena duces tecum to nonparty Robert K. Kochan, a Virginia resident and the president of FAEC. The subpoena directed Mr. Kochan to produce for inspection and copying the following information:

1. As related or pertaining to Hurricane Katrina, to produce and permit inspection and copying through drive imaging, all electronically stored information created, stored or maintained on or after August 29, 2005, on any laptop computer ever utilized by Adam Sammis in the state of Mississippi at any time on or after August 29, 2005. This request applies but is not limited to the laptop computer(s) utilized by Adam Sammis while working in the mobile R/V office Forensic Analysis & Engineering deployed to the Mississippi Gulf Coast before, on or after September 26, 2005; and

Sanctions Warranted for Failure to Comply with Court’s Production Order and Failure to Implement Litigation Hold

Dec 01 2007

Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007)

In this patent and licensing litigation, the court had previously ordered plaintiff to produce “development documents” related to the project at issue in the litigation. According to defendant, plaintiff produced 1,737 pages of documents by the order’s deadline in February 2006, but then later produced more than 11,000 pages of new responsive documents in the final days of discovery in the fall of 2007. Defendant argued that these late-produced documents fell squarely within the ambit of the court’s order and should have been produced 18 months earlier. Defendant also argued that plaintiff had failed to meet its preservation obligations.

At his deposition, one of the key players employed by plaintiff testified that he was not specifically directed by plaintiff’s counsel to search for electronically stored documents; he was asked to produce “all documents” related to his research, and he produced only hard copy documents without examining his electronic files. In addition, the witness stated that during 2005 the University changed the storage system for the archiving of electronically produced information, from a University-wide archiving system to a more localized, “individual computer” storage system. As part of that process the witness reviewed his computer-stored information and preserved what he deemed was important. Conversely, of course, and without guidance, he deleted what he viewed as unimportant. He testified that, in that process, neither the University nor counsel directed that electronically stored information pertaining to the relevant project be preserved in any form. Further, the University’s computer system was such that some emails would be automatically deleted “at some point” if not preserved.

Forrest v. All Cities Mortg. & Fin., Inc., 2007 WL 3026787 (E.D. Wis. Oct. 16, 2007)

Dec 01 2007

Key Insight: In case where defendant was shutting down its business effective November 1, 2007 and plaintiffs argued that shutdown raised possibility of evidence spoliation, court denied plaintiffs? request for order requiring defendant to preserve documents related to lawsuit since plaintiffs offered no evidence that defendant was actually destroying evidence or failing to retain relevant documentation and because defendant?s duty to prevent spoliation of relevant evidence was inherent in judicial process and business shutdown did not impact it

Nature of Case: Putative class action alleging violations of the Fair Credit Reporting Act

Electronic Data Involved: Unspecified evidence

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

Self v. Equilon Enters., LLC, 2007 WL 427964 (E.D. Mo. Feb. 2, 2007)

Dec 01 2007

Key Insight: In order issued after parties’ status hearing on production of electronic documents, court recounted history of discovery conferences and orders addressing defendants’ production, including court’s prior order directing defendants to produce all emails tagged by the search term “transfer price” whether deemed relevant or not after completing a privilege review, and concluded that, since plaintiffs had not shown that need for further electronic discovery outweighed burdens and costs of retrieving and producing such information, and had not shown that defendants were withholding or ?cherry picking? relevant emails, plaintiffs would bear the costs of all additional email searches, if any

Nature of Case: Breach of contract