Key Insight: Insurer’s willful failure to comply with discovery orders and failure to produce database warranted evidentiary preclusion order amounting to entry of default judgment on agent’s counterclaim
Nature of Case: Insurer sued former general agent and agent counterclaimed for renewal commissions owed
Electronic Data Involved: Database containing raw data regarding policies sold by agents
Key Insight: Magistrate found good cause to grant motion to compel where deponent identified source code in deposition which had not been produced; court ordered defendant to produce sworn declaration setting forth the specific efforts it made to locate responsive documents and either a certification that all documents have been produced, or an explanation of why the documents have not yet been produced
Nature of Case: Patent infringement
Electronic Data Involved: Source code
Key Insight: Where defendants “deliberately and willfully” failed to produce responsive documents, court concluded that defendants had not substantially complied with its prior discovery order and awarded civil contempt sanctions against defendants in the amount of plaintiffs’ attorneys’ fees and costs
Nature of Case: Securities litigation
Electronic Data Involved: Documents on individual defendant’s personal computer
Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”
Nature of Case: Valuation dispute arising as result of two merger agreements
Electronic Data Involved: Email stored on monthly backup tapes
Key Insight: Court denied defendant’s motion to extend expert discovery deadline for purposes of reviewing plaintiff’s experts computer data and computerized versions of preliminary and superseded versions of work, where material was produced in hard copy form months earlier and defendant had been dilatory in reviewing it
Nature of Case: Breach of contract and tort claims
Electronic Data Involved: Computerized data and superceded and preliminary drafts of expert
Key Insight: Court denied plaintiff’s motion in limine to preclude testimony, which was based on speculation that email had been destroyed, since defendants produced sworn testimony that all relevant emails were produced, and legitimate reason for erasing some emails “was simply a function of cleaning the junk mail and other clutter from the computer software and disk storage space”
Nature of Case: Breach of contract and tort claims
Electronic Data Involved: Email
Key Insight: After plaintiffs objected to production of sales database because it was not organized to its liking, and defendants produced two further iterations in an attempt to respond to plaintiffs’ complaints, court denied plaintiff’s motion to compel production of “complete and accurate” database since court “was not convinced that defendants have failed to produce this information, even if it is not in the ideal format plaintiff desires”
Nature of Case: Patent infringement
Electronic Data Involved: Sales database
Key Insight: Brief reference to court’s granting plaintiff’s requested ex parte TRO and seizure order to seize computers and hardware, copy memory, and delete pirated software before returning items to defendant
Nature of Case: Copyright and trademark infringement, unfair competition
Electronic Data Involved: Hard drives and memory devices (video game software)
Key Insight: Reference to previously entered TRO, ordering, among other things, that the parties neither destroy, alter, modify nor conceal any relevant data, including data stored on computer media, that defendants create and thereafter produce to defense counsel a backup file of defendant Bailey’s laptop computer, and a backup file of any personal computer hard-drive to which defendant Bailey has had access at any time, and that defendants produce a redacted copy of these hard-drive backup files to plaintiff’s counsel within three days after entry of the TRO; subsequent preliminary injunction included similar provisions
Nature of Case: Employer sued former employee for breach of employment contract, tortious interference, misappropriation of trade secrets
Electronic Data Involved: Databases containing sales and customer information
Key Insight: Inadvertent disclosure of defense attorney’s emails regarding defendants’ disposition of assets in context of massive production constituted subject matter waiver of attorney-client privilege because precautions taken to avoid such disclosure were not reasonable, defendants ordered to produce unredacted attorney billing memoranda relating to issue
Nature of Case: Environmental litigation
Electronic Data Involved: Email
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