Case Summaries – Page 361 – Electronic Discovery Law

Thompson v. Jiffy Lube Int’l, Inc., 2006 WL 3388502 (D. Kan. Nov. 21, 2006)

Dec 01 2006

Key Insight: Court denied plaintiffs’ motion to compel production of email from over 450 employees, finding the request unduly burdensome and not necessary or appropriate for class certification discovery; search was estimated to cost between $600,000 and $1,181,700, and the 21 search terms selected by plaintiffs were likely too common (e.g., ?dollars,? ?complaint,? and ?services?)

Nature of Case: Consumer class action

Electronic Data Involved: Email

MGE UPS Sys., Inc. v. Titan Specialized Servs., Inc., 2006 WL 3524502 (M.D. Tenn. Dec. 6, 2006)

Dec 01 2006

Key Insight: Where evidence showed that defendant had not fully complied with preliminary injunction and had continued to retain and use disputed software, court ordered defendant to produce all of its computers for inspection by plaintiff’s computer expert to ensure that all plaintiff’s software and trade secrets were removed; court further ordered defendant to bear costs of expert’s work and to pay plaintiff its reasonable fees and expenses in bringing the motion

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Software programs, disks, hard drives

United States ex rel. Fago v. M & T Mortgage Corp., 235 F.R.D. 11 (D.D.C. 2006)

Dec 01 2006

Key Insight: Granting in part and denying in part plaintiff’s motion to compel, court ordered defendant to submit a brief showing cause why, if it so contends, it is not capable of pulling names of persons who audited each of the 108 loans from its electronic archives and, if it is capable of so doing, why, if it so contends, the burden of pulling such information would be prohibitive

Nature of Case: Former employee alleged that her former employer violated False Claims Act

Electronic Data Involved: Electronic data and email

MBNA Am. Bank, N.A. v. Cioe & Wagenblast, P.C., 2006 WL 1408402 (N.D. Ind. May 19, 2006)

Dec 01 2006

Key Insight: Court denied motion to reconsider prior discovery ruling that MBNA was not entitled to production of responsive correspondence on diskette, stating that MBNA had remedies under the FRCP if defendants failed to produce legible paper copies as ordered in the prior ruling; court also flatly rejected any attempt by MBNA to obtain discovery through inspection of defendants’ computer hard drives

Nature of Case: Bank alleged firm had conducted “sham” arbitrations with bank’s cardholders

Electronic Data Involved: Word processing files

Leviton Mfg. Co., Inc. v. Nicor, Inc., 2006 WL 1305036 (D.N.M. Jan. 6, 2006)

Dec 01 2006

Key Insight: Citing concerns that defendant had not accounted for documents that at one time were in its files, court ordered defendant to produce all responsive documents, submit a sworn declaration from a corporate officer setting forth precisely why it did not produce the documents that had been shown to the court, make its computers available for inspection by Leviton and its experts, and provide Leviton with an authorization to defendant’s email service company to produce all of defendant’s communication with its customers

Nature of Case: Patent infringement

Electronic Data Involved: Electronic documents

Buskey v. Boston Market Corp., 2006 WL 2527826 (E.D.N.Y. Aug. 14, 2006)

Dec 01 2006

Key Insight: Defendants’ failure to produce accident report amounted to spoliation of evidence and provided additional ground for denying defense motion for summary judgment

Nature of Case: Slip and fall personal injury

Electronic Data Involved: Accident report prepared by defendant

Satchell v. Fedex Express, 2006 WL 2884318 (N.D. Cal. Oct. 10, 2006)

Dec 01 2006

Key Insight: Court granted motion to compel and motion for sanctions, requiring defendant to produce additional documents and file a sworn declaration describing all steps taken to locate particular items; to the extent that defendant’s production did not include responsive documents because they ceased to exist in either paper or electronic format, defendant required to file a sworn declaration stating when it destroyed or ceased to retain these documents, and the policies or reasons for their destruction; to the extent defendant contended that it already produced any of the documents described, defendant to provide a sworn declaration identifying the Bates numbers that correspond to the type of document; defendant further ordered to pay plaintiffs’ reasonable attorneys’ fees and costs associated with the motion

Nature of Case: Class action employment litigation

Electronic Data Involved: Personnel records

Burkybile v. Mitsubishi Motors Corp., 2006 WL 3191541 (N.D. Ill. Oct. 17, 2006)

Dec 01 2006

Key Insight: Court denied motion for entry of default as discovery sanction but ordered defendant to provide a printout of data relevant to the pertinent time period, noting that, although original printouts underlying certain reports no longer existed, the data used to create them still existed in the database and was accessible, and the reports could be recreated, even if not exactly. The court elaborated: “It may in fact be the database, like some sort of digital organism, changes over time. But it does not follow that the critical underlying information is no longer obtainable at all. Perhaps the information utilized . . . in preparing the reports can no longer be reproduced identically . . . But it does not follow that there cannot be some reasonable approximation that will give to the plaintiff the information ordered be produced.”

Nature of Case: Personal injury product liability

Electronic Data Involved: Database reports

Ryan v. Staten Island Univ. Hosp., 2006 WL 3497875 (E.D.N.Y. Dec. 5, 2006)

Dec 01 2006

Key Insight: Where defendant failed to timely disclose that it was withholding certain information from production and defense counsel made representations several times to plaintiff and to court that she had provided full and complete discovery, court: (1) granted motion to compel production of database in hard copy and in electronic form with specific redactions noted and included in revised privilege log; (2) extended discovery cut-off date; and (3) awarded sanctions solely against defense counsel (and not client) for costs of motion

Nature of Case: Fraud and medical malpractice

Electronic Data Involved: Database

Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful

Nature of Case: Patent infringement

Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery

Catagory:Case Summaries