Catagory:Case Summaries

John B. v. Goetz, 2007 WL 3012808 (M.D. Tenn. Oct. 10, 2007)

This case is a class action on behalf of roughly 550,000 children who are entitled under federal law to medical services that include early and periodic screenings for their physical well being, including their dental and behavioral health needs, along with any necessary follow-up medical services.  Through this action, plaintiffs seek to enforce their rights to such services under various federal statutes.  Defendants in the case include Tennessee state officials who are in charge of the state programs for these services.  To assist it in providing these services, the State enters into contracts with a number of Managed Care Contractors (“MCCs”).  The MCCs are not parties in the suit.

Contemporaneous with the filing of the complaint, plaintiffs requested class certification and the parties agreed to entry of a Consent Decree to remedy plaintiff’s complaints and to certify the class.  Lengthy and complex proceedings followed, including several show cause and contempt hearings.

In the latter half of 2006 and in early 2007, the court held a series of hearings and conferences on the parties’ discovery disputes, and ordered the production of certain electronically stored information (“ESI”) from the defendants.  The court also held that the MCCs’ responsive records and ESI were within the possession, custody, and control of defendants, and required the defendants to obtain such information from the MCCs and produce it as well. Read More

Scott v. Beth Israel Med. Center Inc., 2007 WL 3053351 (N.Y. Sup. Ct. Oct. 17, 2007)

Plaintiff is a physician who sued for breach of contract based upon his termination from defendant hospital (“BI”).  Under the contract at issue, BI agreed to pay Dr. Scott $14 million in severance pay if he was terminated without cause.  BI asserted that Dr. Scott was terminated for cause, while Dr. Scott believed he was terminated without cause and without receiving any severance pay.

In August 2005, BI’s counsel wrote Dr. Scott’s counsel stating that BI was in possession of email correspondence between Dr. Scott and his counsel pertaining to Dr. Scott’s dispute with BI, as well as emails written between Dr. Scott and another attorney regarding a separate dispute.  The letter stated that, although no one at BI had read the emails yet, BI believed that any potential privilege attached to the communications had been waived by use of BI’s email system.  Dr. Scott’s counsel responded, asserting that the emails were privileged communications for which there had been no waiver, and requesting their immediate return.  BI refused to return the emails, and the parties called the judge’s court attorney, who instructed BI to provide copies of the emails to Dr. Scott, place copies of the documents into a sealed envelope and bar anyone from reviewing the emails pending a decision by the court.  Thereafter, Dr. Scott filed a motion for a protective order seeking the return of the emails.
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Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. Sept. 20, 2007)

In this employment discrimination case, defendant Lakeside sought an order from the court allowing the review of a hard drive image of a laptop computer furnished to plaintiff while he was employed at Lakeside.  After plaintiff’s counsel raised an objection to the imaging of the hard drive, Lakeside agreed not to review its contents, and the parties attempted to resolve the issue on their own.  When the parties were unable to reach agreement, Lakeside moved to compel the review of the image.

The court granted the motion in part, and denied it in part.  The court found that the plaintiff had no reasonable expectation of privacy in the contents of the laptop that was furnished by Lakeside, including emails he sent and received on his Lakeside email account.  However, the court ruled that web-based emails generated by plaintiff, and any material he created to communicate with his attorney and his spouse, were protected under the attorney-client privilege and the marital communications privilege.

The court explained that Lakeside’s employee manual was “unequivocally clear” in stating that user accounts were the property of Lakeside School, and that they were to be used for academic and administrative purposes only.  “Furthermore, where an employer indicates that it can inspect laptops that it furnished for use of its employees, the employee does not have a reasonable expectation of privacy over the employer-furnished laptop.”  There was no dispute that plaintiff received a copy of this policy and signed an acknowledgment that he read and reviewed the policy.  Consequently, the court held that plaintiff was on notice that he did not possess a reasonable expectation of privacy in the contents of his laptop, or in the emails he sent and received using Lakeside’s accounts.

The court viewed web-based emails differently:
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Verigy US, Inc. v. Mayder, 2007 WL 3144577 (N.D. Cal. Oct. 24, 2007) (Not for Citation)

In this misappropriation of trade secrets case, plaintiff had been granted leave to conduct some expedited discovery prior to the court’s hearing on plaintiff’s motion for preliminary injunction.  In addition, defendants had been ordered to preserve all evidence, including all information contained on their computer hard drives.

In this order, the court resolved plaintiff’s expedited motion to compel certain defendants to produce “bit-for-bit copies (i.e., mirror images) of all hard drives.”  The parties disagreed about how such inspection and production should proceed, and submitted differing proposed discovery protocols for the court to consider.

The court noted that, for the most part, the parties’ protocols were virtually identical, and it appeared that defendants had adopted many of plaintiff’s proposed provisions verbatim.  The main point of contention was whether defendants should be permitted an opportunity to review and object to any searches that plaintiff may wish to have the third party expert conduct.  Defendants proposed a two-tier protocol which (a) would permit discovery in areas that defendants deemed presumptively relevant; and (b) would allow plaintiff to request that the expert conduct other searches, subject to an opportunity by defendant to review and object to the proposed search requests.  Defendants expressed concern that plaintiff would propound unduly burdensome or otherwise abusive searches beyond the scope of permissible discovery under Rule 26:

At the motion hearing, it was suggested, somewhat facetiously, that Verigy might attempt to request a search for all documents with the letter "A." Indeed, documents submitted on supplemental briefing indicate that Verigy apparently has previously requested a search for all documents containing the letter "V" – a request which strikes this court as being patently overbroad.

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Gulfstream Worldwide Realty, Inc. v. Phillips Elecs. N. Am. Corp., 2007 WL 5685128 (D.N.M. Oct. 19, 2007)

In this case, arising out of a claim for a commission on the sale of a semiconductors plant, Phillips Electronics North America (“PENAC”) moved the court for a protective order to allow NXP Semiconductors USA, Inc., a non party, to erase and reuse backup tapes that potentially contained information relevant to the lawsuit.  NXP’s backup tapes are implicated by its relationship with Royal Phillips, PENAC’s parent company and the holder of a 19.9% interest in NXP, a company formed following Royal Phillips’s sale of its semiconductor business.  Many of the former employee’s of Royal Phillip’s semiconductor business went to work for NXP.

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In re eBay Seller Antitrust Litig., 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007)

Plaintiffs moved for an interim preservation order because, in their view, defendant eBay had failed to disclose sufficient information regarding the efforts it was making to ensure that relevant ESI was preserved and collected.  Although the parties agreed that eBay would provide a witness to testify under Rule 30(b)(6) of the Federal Rules of Civil Procedure regarding its ESI preservation and collection efforts, they disagreed about whether eBay must produce the “document retention notices” (“DRNs”) it sent out to approximately 600 of its employees, and whether eBay must disclose the names and job titles of those approximately 600 employees.

The court ruled that eBay need not produce copies of the DRNs, nor any information about matters contained therein that were privileged or constituted work product.  However, the court ruled that plaintiffs were entitled to inquire into the facts as to what the employees receiving the DRNs had done in response.  The court elaborated:
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Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007)

In this employment discrimination case, defendants moved to compel plaintiff to provide complete responses to requests for production, to produce the hard drive of her personal computer for inspection and copying, and to stop destroying emails and other relevant evidence.  Defendants had requested all communications between plaintiff and defendant National American University or its employees, agents, or students.  Plaintiff produced some documents as part of her initial disclosures and in response to defendants’ discovery requests.  In subsequent discussions regarding the sufficiency of plaintiff’s production, plaintiff’s counsel informed defense counsel that plaintiff had deleted email correspondence with her students and could not produce any additional emails beyond what she had already provided in her initial disclosures.  Prompted by concerns about recovering these emails, as well as the discovery responses, defendants requested that she produce the hard drive of her personal home computer to facilitate recovery of the deleted emails by a computer forensics specialist.  Plaintiff refused to produce her computer hard drive without an order of the court.  After further efforts to resolve the discovery dispute, defendants filed a motion to compel.

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Auto Club Family Ins. Co. v Ahner, 2007 WL 2480322 (E.D. La., Aug. 29, 2007)

Non-parties Rimkus Consulting Group, Inc. and Rimkus Consulting Group, Inc. (collectively "Rimkus") filed a motion to quash the subpoena duces tecum served on them by defendants Christopher and Jennifer Ahner (“the Ahners”), and for a protective order.  Rimkus had, on behalf of plaintiff Auto Club Family Insurance Company, investigated the hurricane-related damage to the Ahners’ home that was the subject of the lawsuit.  Rimkus agreed to respond to the subpoena by producing a hard copy of its entire file concerning its investigation, but argued that it should not be required to produce its electronically stored information.

The court noted that Rules 26(c) and 45 governed the proceeding, and that, having sought a protective order, Rimkus had a burden to make “’a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements,’ in support of its motion.”  Considering each of Rimkus’s arguments in turn, the court denied the motion to quash the subpoena. Read More

Butler v. Kmart Corp., 2007 WL 2406982 (N.D. Miss. Aug. 20, 2007)

In this order, the court considered plaintiff’s motion to compel Kmart to respond to several discovery requests.  The court granted the motion in part, and denied it in part.

Two of the issues considered by the court touched directly on the discovery of electronically stored information (“ESI”).  One of plaintiff’s complaints in the motion was the dearth information produced by Kmart in response to a particular set of RFPs.  The court observed that while counsel must make a reasonable effort to ensure their client has produced all the documents responsive to a discovery request, “a party cannot be expected to produce information that no longer exists.”  The court found that the affidavits submitted by Kmart describing their unsuccessful efforts to locate tangible items at various store locations indicated “no evidence that Kmart has failed to make a diligent search,” and declined to order additional searches for tangible items.  However, after noting that Kmart was also obligated to produce ESI relevant to the requests at issue, the court found that Kmart’s efforts in that regard were less clear, and ordered additional steps be undertaken:

It is less clear whether Kmart acted with similar diligence in search its electronically stored information.  In fact, Kmart mentions very little about whether it conducted searches in its various computer systems for documents responsive to the various discovery requests.  Absent some valid objection, it is clear that Kmart must produce electronically stored information, if it exists, responsive to the plaintiff’s discovery request.

At this point, without nothing more from Kmart on this matter, the court will compel its production of electronically stored information responsive to plaintiff’s various requests.  Once again, Kmart will conduct a thorough search of its computer systems and will provide the plaintiff with any electronically stored information responsive to the request or, alternatively, with responses (and accompanying affidavits, if necessary) demonstrating its diligent search of its computer systems.

(Italics in original.)

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In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)

In this opinion, United States Magistrate Judge David A. Barker considered Plaintiffs’ motion for sanctions based on the failure of defendant AstraZeneca (“AZ”) to timely comply with various discovery obligations.

In April 2007, Plaintiffs had filed a motion to compel completed production of various items listed in the case management order (“CMO”) entered January 2007.  (For a summary of the related opinion discussing the CMO, click here).  The motion was denied without prejudice by the court, to allow the parties to confer “in good faith and in extenso” on the issues raised in the motion to compel.   At the same time, the court scheduled an evidentiary hearing on the motion, warning the parties:

ANY PARTY WHOSE CONDUCT NECESSITATES THE EVIDENTIARY HEARING SHOULD EXPECT THE IMPOSITION OF SANCTIONS FOR ANY UNREASONABLE OR INAPPROPRIATE CONDUCT OR POSITION TAKEN WITH RESPECT TO THESE MATTERS.

(Capitals and bold in original.)

The evidentiary hearing was ultimately canceled after the parties filed a Joint Statement of Resolved Issues and Notice that a Hearing is Not Required.  Plaintiffs agreed to the Joint Statement and Notice based on AZ’s representations that it would correct the faults described by Plaintiffs in their original motion to compel.  When the corrections were not made, Plaintiffs filed this motion for sanctions.

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