Key Insight: This order constitutes the parties? stipulated Electronic Discovery Plan and Order to Preserve Evidence, which includes definitions of various terms and sets out a number of discovery ?protocols?
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Where plaintiff produced digitized documents from defendant’s inspection of nine boxes of hard copy documents (some 10,000 pages) per the parties’ agreement, court denied defendant’s motion to compel plaintiff to provide an index of such digitized documents, finding that Rule 34 does not require a party to create an index
Nature of Case: Breach of contract, negligence and breach of confidentiality agreement
Electronic Data Involved: Index of digital documents
Key Insight: Magistrate ruled that, although litigation hold notices were relevant (“Like a party’s destruction of relevant documents, if plaintiff’s document retention notices are patently deficient or inadequate in some other respect, they might support a negative inference concerning the merits of plaintiff’s claims.?), they were privileged and not subject to production; plaintiff’s failure to list them in privilege log did not effect waiver because notices were not in existence at the time plaintiff?s response to the requests for production was due
Nature of Case: Acquiring corporation sued acquired corporation’s officers, directors, and independent auditor for securities fraud and other torts
Electronic Data Involved: Litigation hold notices issued by plaintiff
Key Insight: Court abused its descretion when it refused to enter protective order addressing Allstate’s production of computer program and manuals, since plaintiff made no showing that discovery under a protective order would be detrimental to his case, and it was shown that discovery without a protective order could be detrimental to Allstate
Nature of Case: Bad faith insurance litigation
Electronic Data Involved: Colossus computer program used by Allstate to evaluate claims
Key Insight: Further to its previous orders imposing $111,348 in sanctions against Krumwiede for willful and bad faith spoliation of evidence, and where Krumwiede presented no evidence of financial inability to pay sanctions amount, court ordered Krumwiede to pay sanctions within 30 days or the remainder of his pleadings would be stricken
Nature of Case: Former employee who went to work for competitor sued for back pay and reformation of employment agreement; former employer asserted counterclaims for breach of non-compete and confidentiality clauses and related claims
Electronic Data Involved: Laptop computers
Key Insight: Where plaintiff claimed that defendants did not produce all requested electronic documents and that defense counsel had not conducted a proper inquiry to determine whether or not all electronic documents were produced, court ordered defendants to verify that all requested electronic documents were produced and to produce any electronic documents not yet provided
Nature of Case: Fraud and related claims stemming from BART construction subcontracts
Electronic Data Involved: Electronic documents
Key Insight: Magistrate judge barred Dell from using certain documents at trial since plaintiff had no notice that the documents would be relied upon by Dell to support its defenses until the documents were specifically produced after the discovery deadline; court noted that, although the documents were among some 542,917 documents produced by Dell in electronic form and in a searchable format using a CaseData System, there was no evidence that Dell ever identified any of the documents provided on the CaseData System as responsive to any particular discovery request, and documents were neither produced as “kept in the ordinary course of business” nor as “ordinarily maintained”
Nature of Case: Patent infringement
Electronic Data Involved: Electronic documents produced in searchable database
Key Insight: Court declined to compel American Express to search for email sent from and to certain executives who were no longer employed by American Express, since the moving parties had not agreed to search for email sent from or to their own former executives and American Express had already produced some 27,501 emails sent to or from certain former executives through the production of email from other custodians
Nature of Case: Antitrust
Electronic Data Involved: Email of former executives
Key Insight: Where defendant’s initial email search was not appropriate and incomplete and court observed that ?better communications and diligence ? e.g., through personal interaction rather than email between general counsel and the IT director ? would have avoided one year?s delay in producing relevant documents,? court denied motion to compel since record indicated that further searches would be futile, but awarded plaintiff costs of motion
Nature of Case: Wrongful termination, employment discrimination
Electronic Data Involved: Email
Key Insight: Where defendant never attempted to preserve email related to disputed products, did not impose email preservation directive and did not suspend policy of destroying all email after 30 days, but asserted that no relevant email was destroyed because its employees never exchanged emails on topics relevant to lawsuit, court declined to enter default judgment absent stronger proof of bad faith intent and reserved decision on adverse inference instruction; court would allow parties to explore with witnesses at trial whether they exchanged and then destroyed relevant email
Nature of Case: Patent infringement
Electronic Data Involved: Email
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