Case Summaries – Page 328 – Electronic Discovery Law

McKenna v. Nestle Purina PetCare Co., 2007 WL 433291 (S.D. Ohio Feb. 5, 2007)

Dec 01 2007

Key Insight: Court denied without prejudice plaintiff?s motion for sanctions based upon defendant?s claimed inability to retrieve the contents of plaintiff?s email account, where defendant had identified several older emails at the time of plaintiff?s discharge (to support its termination of plaintiff) but represented in discovery that its employees’ email accounts were overwritten beginning on the eighth day after a message was either sent or received and that no additional emails existed beyond those produced; court suggested that defendant investigate the matter and be prepared, if requested in discovery, to provide a further explanation of the apparent discrepancy between its ability to retrieve emails at the time of plaintiff?s discharge and its current ability to do so

Nature of Case: Wrongful termination, employment discrimination

Electronic Data Involved: Email

Qantum Communications Corp. v. Star Broad., Inc., 473 F. Supp. 2d 1249 (S.D. Fla. 2007)

Dec 01 2007

Key Insight: Court imposed sanctions of default judgment and award of reasonable attorney fees and costs based upon defendants’ pattern of discovery misconduct, which included defendant’s lying under oath regarding key issue in case and failing to produce key “smoking gun” documents; court set hearing to determine the appropriate amount of damages and fees and costs

Nature of Case: Action for specific performance of asset purchase agreement

Electronic Data Involved: Email

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 1054279 (D. Kan. Apr. 9, 2007)

Dec 01 2007

Key Insight: Where corporate designee could not fully answer questions regarding certain topics listed in Rule 30(b)(6) notice pertaining to plaintiff?s computer servers, software, data storage and retention, or plaintiff?s efforts to search for responsive email and documents, and did not know ?exactly how [the e-discovery vendor] searched? plaintiff?s servers or ?what all was on? the CD that was produced to defendants, court found that witness was inadequately prepared and ordered plaintiff to produce a supplemental Rule 30(b)(6) witness on those topics

Nature of Case: Antitrust and tortious interference litigation

Electronic Data Involved: Email; hardware and software; systems information

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2007 WL 1514005 (S.D. Ohio May 22, 2007)

Dec 01 2007

Key Insight: Where magistrate judge found that defendant “deliberately and stubbornly refused to produce the most basic information about its Ohio contacts and has likely destroyed much of that information after it put those contacts directly at issue,” magistrate judge denied defendant’s motion to dismiss for lack of personal jurisdiction as least drastic discovery sanction and awarded plaintiff its reasonable attorneys’ fees and expenses incurred in connection with the sanctions motion

Nature of Case: UCC claims arising from defendant’s Internet-based check service

Electronic Data Involved: Database

In re Subpoena to Chronotek Sys., Inc., 2007 WL 2177013 (S.D. Tex. July 27, 2007)

Dec 01 2007

Key Insight: Magistrate judge adopted special master’s recommendations regarding motion to compel production of source code, and ordered Chronotek to produce the portions of its source code, if any, that incorporated particular technology subject to an appropriate protective order, or, if source code did not incorporate particular technology at issue, affidavit of knowledgeable person attesting to same

Nature of Case: Patent litigation

Electronic Data Involved: Source code

Square D Co. v. Scott Elec. Co., 2007 WL 3488809 (W.D. Pa. Nov. 14, 2007)

Dec 01 2007

Key Insight: Declining to impose sanctions at this stage of litigation, court reiterated its prior order requiring defendant to submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at defendant’s sole expense and cost; court further denied defendant’s motion for protective order for lack of good cause

Nature of Case: Circuit breaker manufacturer alleged that defendants unlawfully imported, distributed, and sold counterfeit Square D products

Electronic Data Involved: Defendant’s computer systems

MGP Ingredients, Inc. v. Mars, Inc., 2007 WL 3010343 (D. Kan. Oct. 15, 2007)

Dec 01 2007

Key Insight: Where parties had no prior agreement about the manner in which documents and ESI were to be produced and plaintiff did not specify format in requests for production, court found that defendants had the right under Rule 34 to choose the option of producing their documents and ESI as kept in the usual course of business and declined to order defendants to identify by Bates Numbers the documents and ESI that were responsive to each particular request for production

Nature of Case: Patent infringement, misappropriation of trade secrets, tortious interference, and breach of contract

Electronic Data Involved: Documents and ESI

Vennet v. Am. Intercont’l Univ. Online, 2007 WL 4442321 (N.D. Ill. Dec. 13, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel on variety of e-discovery topics and ordered defendant to allow plaintiffs? expert reasonable access to (1) phone system and backup system for purpose of recovering inadvertently overwritten phone logs and (2) appropriate personal computers or computer network in order to search for particular documents; plaintiffs further allowed to take Rule 30(b)(6) deposition concerning defendant?s computer network, phone system, and document retention and destruction practices

Nature of Case: Plaintiffs alleged violations of the Fair Labor Standards Act

Electronic Data Involved: Email and other ESI

Haka v. Lincoln County, 246 F.R.D. 577 (W.D. Wis. 2007)

Dec 01 2007

Key Insight: Balancing relevant factors, court ruled that fairness and efficiency required parties to proceed with search for ESI incrementally and limited initial search to emails stored on hard drives; court instructed plaintiff to narrow his search terms, and any additional searches would occur only by joint agreement or court order; parties to share equally the costs of performing initial keyword search, but defendant to pay full cost of privilege/relevance review

Nature of Case: Employment litigation

Electronic Data Involved: Email and other ESI

Whitney v. Wurtz, 2007 WL 521231 (N.D. Cal. Feb. 15, 2007)

Dec 01 2007

Key Insight: Court ordered plaintiffs to provide a separate disk for each plaintiff’s responses to defendant?s request for production, and instructed (1) that ?electronic documents shall be produced as they are kept in the usual course of business or Plaintiffs shall organize and label the documents to correspond with Veriscape’s requests? and (2) that electronic documents be produced without the use of any compression software and in the format requested by defendant at the hearing

Nature of Case: Breach of contract, termination, and deceit

Electronic Data Involved: Electronic documents produced on computer disk

Catagory:Case Summaries