Key Insight: Court narrowed scope of subpoena and ordered plaintiff and third party to negotiate a reasonable “sample” protocol and search protocol to expedite production, limit the burden and perhaps develop information to return to court to refine the court’s ruling
Nature of Case: Securities class action
Electronic Data Involved: Spreadsheets
Key Insight: Trial judge did not err in imposing monetary sanctions and evidentiary sanction against individual defendant limiting the scope of his testimony, where defendant delayed for several days and deleted relevant computer files in violation of court’s order requiring defendant to “immediately make available to Plaintiff’s designated expert all computers, including hard drives and all other electronic storage media in [defendant’s] possession, custody and/or control”
Nature of Case: Breach of contract and fraud
Electronic Data Involved: 5,300 computer files
Key Insight: Ninth circuit granted writ of mandamus reversing district court’s order compelling plaintiffs to produce their answers to law firm’s internet questionnaire; although questionnaire disclaimed any formation of an attorney-client relationship, it did not disclaim confidentiality, and, under California law, prospective clients’ communications with a view to obtaining legal services were covered by the attorney-client privilege
Nature of Case: Users of antidepressant sued manufacturer of drug
Electronic Data Involved: Law firm’s questionnaires regarding drug which were completed and submitted to the law firm on the internet
Key Insight: Court ordered plaintiff to produce all materials that plaintiff’s counsel furnished to plaintiff’s testifying expert, regardless of privilege or claimed work product protection, including emails, summaries, spreadsheets and draft expert reports
Nature of Case: Employer sought to enforce restrictive covenants against former employees
Electronic Data Involved: Emails, spreadsheets, draft expert reports
Key Insight: Denying defendant’s motion for a new trial, court concluded that adverse inference jury instruction based upon defendant’s mistaken failure to suspend document retention policy that deleted email every 30 days was not misleading or unduly prejudicial
Nature of Case: Patent infringement
Electronic Data Involved: Email
Key Insight: Finding that individual had stated cognizable defamation claim against anonymous author of offending email, court denied email author?s application to vacate order requiring internet service provider to disclose email account information
Nature of Case: Defamation claim based on offending email message
Electronic Data Involved: Email author identity
Key Insight: Court denied plaintiff’s motion to reject defendant’s attorney-client privilege and work product claims, finding that crime/fraud exception did not apply, that defendant had not waived privilege, and that plaintiff had not demonstrated a substantial need for the material; court also noted that defendant had previously been sanctioned for the discovery conduct complained of and that it would be inappropriate to sanction defendant again for the very same conduct
Nature of Case: Employment discrimination
Electronic Data Involved: Drafts of discovery responses and email claimed to be privileged
Key Insight: Where defendant breached its duty to preserve by failing to establish a “comprehensive document retention policy” and by failing to properly disseminate the policy to its employees, and conduct evinced ?extraordinarily poor judgment? and ?gross negligence” but not willfulness or bad faith, magistrate recommended that prejudice to plaintiff could be remedied by precluding defendant from cross-examining plaintiff’s financial expert and by instructing the jury about the sanction
Nature of Case: Securities class action
Electronic Data Involved: Underlying data and calculations
Key Insight: Request for production of “computer hard drive” was overly broad and responding party need not produce entire hard drive; however, to the extent that hard drive contained non-privileged items that were responsive to other requests as to which responding party’s objections were not sustained, such items should be produced
Nature of Case: Insurance coverage and unauthorized settlement
Electronic Data Involved: Hard drive
Key Insight: Court denied plaintiff’s motion to compel defendant to produce (among other things) computer generated employee profiles of all its employees in North Carolina from 1995 to the present, finding that producing records of over 1,000 employees who were not similarly situated to plaintiff would be unduly burdensome and oppressive and was unlikely to lead to the discovery of admissible evidence
Nature of Case: Employment discrimination
Electronic Data Involved: Computer generated employee profiles
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