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.

LR5-A Ltd. P’ship v. Meadow Creek, LLC, 2007 WL 4248100 (Mass.Super.)

Dec 01 2007

Key Insight: Court declined to enter non-destruction order since it had already advised party’s counsel about possible penalties for spoliation and assumed that the message had been passed along; court further denied request for array of orders compelling party to make extensive searches of electronic documents and to permit forensic computer expert to examine all network servers, desktop and laptop computers, hard drives, backup tapes, and PDAs for responsive documents

Electronic Data Involved: Email

Giant Screen Sports LLC v. Sky High Entm’t, 2007 WL 627607 (N.D. Ill. Feb. 27, 2007)

Dec 01 2007

Key Insight: Court entered default judgment against defendants and dismissed their counterclaims with prejudice as sanction for repeated discovery violations and blatent disregard of court’s orders; among other things, defendants had failed to produce any emails and discarded individual defendant’s computer that was subject to inspection request

Nature of Case: Breach of contract, fraud, and other claims

Electronic Data Involved: Email

Imig, Inc. v. Electrolux Home Care Prods., Ltd., 2007 WL 900310 (E.D.N.Y. Mar. 22, 2007)

Dec 01 2007

Key Insight: Court granted defendant’s motion for summary judgment on copyright infringement counterclaims, based in part on adverse inference stemming from plaintiff’s failure to preserve and produce relevant evidence; defendant showed that substantial portion of deleted files recovered by its forensic expert were favorable to its position on various claims

Nature of Case: Plaintiff alleged defendant improperly disparaged plaintiff’s product, and defendant asserted counterlaims for copyright infringement

Electronic Data Involved: Electronic data on hard drives

Rebman v. Follet Higher Educ. Group, Inc., 2007 WL 1303031 (M.D. Fla. May 3, 2007)

Dec 01 2007

Key Insight: Where defendant showed that there were more than 200 million sales transactions contained in database and that it would be necessary to create a special software program to capture the information requested by plaintiffs and translate the information into a meaningful and readable format, court sustained defendant?s objections of burdensomeness and overbreadth and denied motion to compel; court would allow plaintiff to serve new, more narrowly tailored requests for production but would first require parties to confer in good faith to discuss the form in which ESI should be produced and how to ameliorate the costs attendant to production of such information

Nature of Case: Third party breach of contract and unfair trade practices

Electronic Data Involved: Sales database

Oklahoma, ex rel. Edmondson, 2007 WL 1498973 (N.D. Okla. May 17, 2007)

Dec 01 2007

Key Insight: Where court had invited motion to address e-discovery issues in order to assure that e-discovery issues were moving foward, court granted motion and directed parties to the Guidelines for the Discovery of ESI for the District of Kansas to serve as guidance pendng enactment by the court of its own local rules and/or guidelines; court further noted that, although no formal preservation order had been entered, the duty to preserve evidence including ESI arises as soon as a party is aware the documentation may be relevant; court further warned parties to be “very cautious” in relying upon the safe harbor provision of new FRCP 37(e)

Nature of Case: Nuisance and CERCLA claims against owners of poultry growing operations

Electronic Data Involved: ESI

Rafael Town Center Investors, LLC v. Weitz Co., LLC, 2007 WL 2261376 (N.D. Cal. Aug. 6, 2007)

Dec 01 2007

Key Insight: Court ruled plaintiff was entitled to monetary sanctions arising from defendant’s document production, stating: “It is undisputed that the first two productions were essentially unusable, and that as a result, plaintiff’s law firm wasted a considerable amount of time attempting to organize the electronic documents. It was the responsibility of defense counsel to ensure that the document production complied with Rule 34(b)(i), and to oversee the work of defendant’s document management company.”

Nature of Case: Construction litigation

Electronic Data Involved: Electronic documents

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Greystone Servicing Corp., 2007 WL 4179864 (N.D. Tex. Nov. 26, 2007)

Dec 01 2007

Key Insight: Overruling defendant’s relevancy objections to various interrogatories, court ordered defendant to serve full and complete answers to various interrogatories, including one that asked: “Identify any documents, data or other information that relate to or reference the subject matter of this litigation, that have been deleted, physically destroyed, discarded, damaged, or overwritten, whether pursuant to a document retention policy or otherwise.”

Nature of Case: Breach of contract, tortious interference, and negligent misrepresentation

Electronic Data Involved: Potentially deleted data

Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 3101248 (D. Nev. Oct. 16, 2007)

Dec 01 2007

Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them

Nature of Case: Infringement litigation

Electronic Data Involved: Servers

Catagory:Case Summaries