Case Summaries – Page 384 – Electronic Discovery Law

Stamps v. Encore Receivable Mgmt., Inc., 232 F.R.D. 419 (N.D. Ga. 2005)

Dec 01 2005

Key Insight: Plaintiff was not entitled to protective order delaying, until after key depositions were taken, production of tape recording of message left by defendant’s representative on plaintiff’s home answering machine, since tape constituted substantive evidence and was not mere impeachment evidence, and issues of fairness weighed in favor of production

Nature of Case: Debtor alleged violations of Fair Debt Collection Practices Act

Electronic Data Involved: Tape recording of message left on answering machine

Ferrero v. Henderson, 2004 WL 1802134 (S.D. Ohio July 28, 2005)

Dec 01 2005

Key Insight: Where parties had settled the amount of attorney fees to be paid to plaintiff as sanction for defendant’s failure to produce crucial payroll records until first day of trial, court reconsidered and withdrew finding of bad faith on part of defense counsel since she had made at least some effort to reasonably investigate, and the failure to produce the material was blamed on two employees in defendant’s HR department

Nature of Case: Wrongful termination, FMLA claim

Electronic Data Involved: Payroll data

Magistrate Judge Orders Parties to Develop a Reasonable Electronic Discovery Plan Addressing Pre-and Post-Production Privilege Review

Nov 30 2005

Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005)

In this putative class action alleging race discrimination, plaintiffs served voluminous discovery requests that clearly identified their interest in discovering electronically stored information. When defendants raised boilerplate and conclusory objections, plaintiffs responded with multiple written communications and ultimately filed a motion to compel. Although an expedited hearing was held, “months had passed from the commencement of discovery while the dispute festered.” Read More

Citing “Unique Burden” of Restoring Email from Backup Tapes and “Special Weight” to be Accorded Non-Party’s Status, Court Grants Motion to Quash Subpoena

Nov 28 2005

United States v. Amerigroup Ill., Inc., 2005 WL 3111972 (N.D. Ill. Oct. 21, 2005)

In this qui tam suit filed under the False Claims Act and the Illinois Whistelblower Act, plaintiff alleged that defendants submitted false or fraudulent claims for payment by omitting certain information from quarterly statements submitted to the Illinois Department of Healthcare and Family Services (“HFS”). Defendants served a subpoena upon HFS seeking, among other things, email from certain employees. HFS moved to quash, and after several conferences with the court, defendants agreed to limit the request to the emails of two individuals currently employed by HFS and one former employee. Defendants also agreed that HFS could limit the search terms to be used in retrieving the desired emails to those set out by the defendants. Unhappy still, HFS maintained that the subpoena must be quashed under Rule 45(c)(3)(A)(iv) because the request was unduly burdensome and the emails were irrelevant and unlikely to lead to the discovery of admissible evidence. Read More

Court Requires Balancing of Need for Evidence with Burden of Discovery Order

Nov 10 2005

Biomet, Inc. v. Fleury, 912 So.2d 706 (Fla. Dist. Ct. App. 2005)

Norman and Karen Fleury filed a products liability and personal injury lawsuit alleging that Mr. Fleury’s Biomet knee prosthesis failed prematurely. The trial court granted a broad discovery order requiring Biomet, Inc. to produce documents related to complaints about its products that contain molded or machined ultra high molecular weight polyethylene intended for insertion into humans. Defendants petitioned for a writ of certiorari to quash the order. Read More

Court Finds that Lucent and Its Attorneys Tried to “Hide the Ball” and Engaged in Sanctionable Conduct

Nov 09 2005

Tantivy Communications, Inc. v. Lucent Techs. Inc., 2005 WL 2860976 (E.D. Tex. Nov. 1, 2005)

Tantivy Communications, Inc. (“Tantivy”) filed a Motion to Exclude in this patent infringement matter, alleging that Lucent Technologies, Inc. (“Lucent”) withheld documents and data, misrepresented the existence of documents and data, allowed the destruction of documents, and produced documents for the first time in an expert report. Read More

Network Access Agreement Evidences Control of Third Party Documents; Defendant Fined $500,000 for Willful Disregard of Discovery Orders

Nov 09 2005

Kamatani v. Benq Corp., 2005 WL 2455825 (E.D. Tex. Oct. 4, 2005)

Yasuo Kamatani and LaserDynamics, Inc. sued Benq Corporation and Benq of America Corporation (collectively “Benq”) for patent infringement in connection with optical disk drive recognition technology. Several discovery disputes developed, and sanctions were issued against Benq on two occasions. A show cause hearing was held in August, 2005 to address allegations of further discovery abuses related to the belated identification of new DVD products and the production of technical documents from third parties. Read More

Court Expands Ediscovery where Defendant’s Sworn Statements that Documents Do Not Exist Appear Erroneous

Nov 01 2005

Tilberg v. Next Mgmt. Co., 2005 WL 2759860 (S.D.N.Y. Oct. 24, 2005)

According to an article in Fashiongates.com, Tasha Tilberg, a Canadian supermodel, sued Next Model Management Company (“Next”) claiming that it had underreported her earnings and “swiped” $150,000. Natalie Tilberg (a/k/a Tasha Tilberg) (“Tilberg”) and Next were to share the cost of having Tilberg’s forensic specialist search Next’s email servers in accordance with an order issued on July 26, 2005 by Magistrate Judge Ellis. Tilberg asserted that the expert was unable to access one of the email servers and found evidence that responsive documents exist despite statements from Next indicating otherwise. Tilberg then asked the Court to order further discovery despite the deadline having passed. Read More

Careless Inadvertent Disclosure of Vital Emails Results in Waiver of Attorney-Client Privilege

Oct 26 2005

Atronic International GMBH v. SAI Semispecialists of America, Inc., 232 F.R.D. 160 (E.D.N.Y. 2005)

Atronic International (“Atronic”) sued SAI Semispecialists of America (“SAI”) in connection with a breach of contract. At the end of 2003, during initial Rule 26 disclosures, Atronic’s production included two emails between an Atronic employee and international counsel. These emails were again produced on January 7, 2005 as exhibits to be used at deposition. Upon realizing that it had produced apparently privileged documents, Atronic sought an order requiring the return of the emails and barring defendant from using the information therein. Read More

Court Finds Failure to Preserve and Produce Material from Third Party Electronic Database Improper Grounds for Dismissal

Oct 20 2005

Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005)

In 1995, the Proctor & Gamble Company and the Procter & Gamble Distributing Company (collectively “P&G”) sued Randy Haugen (“Haugen”) (an Amway Corporation distributor) and others under the Lanham Act and Utah common law. P&G alleged that Haugen had associated P&G with the Church of Satan via a voice mail message distributed to other Amway distributors, causing P&G to lose business. Read More

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