Key Insight: No abuse of discretion to deny motion to compel access to GM’s databases and grant protective order to GM where plaintiffs’ proposed computer database searches were overly broad in scope, duplicative of prior requests and unduly burdensome
Nature of Case: Personal injury
Electronic Data Involved: Database
Key Insight: Defendants ordered to provide an affidavit explaining steps taken to search paper and electronic files for responsive documents and feasibility and cost of retrieving certain emails. Plaintiff would then have option of consenting to protocol set forth in Rowe Entertainment as modified by Murphy Oil, or arguing for different protocol by conferring with defendant and submitting a joint letter outlining parties’ respective positions on the issue
Nature of Case: Gender discrimination
Electronic Data Involved: Email and electronic files
Key Insight: Failure to preserve certain computer hard drives did not warrant sanctions where there was no reasonable possibility that the missing hard drives (which were obtained after protective order was issued) contained evidence of the theft of trade secret information
Nature of Case: Misappropriation of trade secrets and related torts
Electronic Data Involved: Computer hard drives
Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”
Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)
Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data
Key Insight: Plaintiff’s failure to preserve computer printouts and telephone lists loaded onto Palm Pilot did not warrant an adverse inference instruction, but did warrant monetary sanctions of $28,271.75 to be paid by party (not his attorney) to compensate the victim for attorneys’ fees and expenses arising both from additional discovery required to locate equivalent information by alternative means and from the motion practice necessitated by the spoliation
Nature of Case: Action seeking monetary damages and specific performance of stock option agreement
Electronic Data Involved: Hard copy material loaded onto Palm Pilot
Key Insight: Requiring defendant to bear expense of identifying class members was abuse of discretion where cost of effort (over $16,000), which included manually sorting records, keypunching and creating software programs, would be same for plaintiff and no special circumstances existed
Nature of Case: Securities fraud class action
Electronic Data Involved: Computer tapes
Key Insight: Brief reference to court’s earlier order narrowing the scope of subpoena to hard copy documents only, rather than including production of electronic documents
Nature of Case: Product liability
Electronic Data Involved: Electronic production of documents
Key Insight: Defense counsel’s failure to produce computer records and to retain all drafts of settlement documents reflected lack of diligence rather than intentional effort to abuse discovery process; testimony of witness barred and $500 awarded as sanctions
Nature of Case: Sexual harassment
Electronic Data Involved: Computer records
Key Insight: Plaintiff’s motion to modify scheduling order to allow additional electronic discovery (production of all source code and image copies of all hard drives with access to a server from which a particular disk was copied) denied because plaintiff failed to exercise reasonable diligence — it had possession of the disputed disk for over nine months before it examined the disk and appreciated its significance
Nature of Case: Copyright infringement
Electronic Data Involved: Source code, image copies of hard drives
Key Insight: Finding it “astounding” that defendant’s employees failed to follow court’s preservation order and defendant’s own document retention policies, court rejected plaintiff’s request for adverse inference but imposed monetary sanction of $2,750,000 and barred testimony from at least 11 witnesses who failed to comply with defendant’s own internal document retention program
Nature of Case: Tobacco litigation
Electronic Data Involved: Email
Copyright © 2022, K&L Gates LLP. All Rights Reserved.