Electronic Discovery Law – Page 238 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Silverman v. Shaoul, 913 N.Y.S.2d 870 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Court held that ?precedent shows that the requesting party bears the cost of electronic discovery when the data sought is ?not reasonably available? upon a showing of undue burden and denied defendant?s order to show cause to compel plaintiffs to pay the costs where defendants data was neither archived nor deleted but simply stored in a number of places and interspersed with other business documents

Electronic Data Involved: ESI

Veolia Transp. Servs., Inc. v. Does I-VII, 2010 WL 5151323 (D. Ariz. Dec. 13, 2010)

Dec 01 2010

Key Insight: Court granted motion to conduct pre-service discovery for the purpose of ascertaining the identity of the Doe defendants and, upon the parties agreement, ordered that a third-party expert conduct the discovery

Electronic Data Involved: Identity of Doe defendants

Response Personnel, Inc. v. Aschenbrenner, 909 N.Y.S.2d 433 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where a lower court denied plaintiff?s motion for a protective order and ordered the production of tax returns and other documents in electronic format at plaintiff?s expense, the appellate court affirmed the denial of the protective order and the order compelling electronic production but found that requiring plaintiff to bear the costs imposed an undue burden where ?generally, the costs of production is borne by the party requesting the production, and the cost of creating electronic documents here would not be inconsequential?

Electronic Data Involved: Tax returns and other documents in electronic form

Jannx Med. Sys., Inc. v. Methodist Hosps., Inc., 2010 WL 4789275 (N.D. Ind. Nov. 17, 2010)

Dec 01 2010

Key Insight: Where absent a specific request for native production plaintiff produced ESI in .pdf format and where defendant objected that .pdf format was not in compliance with Rule 34 because it was not produced in the ?fully searchable and manipulable? format in which it was normally maintained, the court acknowledged that ?there are circumstances in which .pdf format may satisfy discovery obligations? but found that plaintiff had converted the ESI into a more burdensome format in contravention of Rule 34 and granted the motion to compel ?to the extent that Defendants? request that Plaintiff produce responsive information in an electronic database format that allows the information to be reasonably usable, i.e., fully searchable and manipulable, with the connections between the data fields intact?

Electronic Data Involved: Electronic database data

Habtegiorgis v. OIC of Washington, 2010 WL 2232142 (E.D. Wash. June 2, 2010)

Dec 01 2010

Key Insight: Finding plaintiff?s requests ?reasonably calculated to lead to the discovery of admissible evidence,? court granted plaintiff?s motion to compel and ordered defendants to produce certain ESI and to allow plaintiffs to search defendant?s server and network using the terms of plaintiff?s choosing and ordered that defendant provide information regarding the creation of backup disks and other evidence; court granted plaintiff?s motion for the costs of bringing the motion

Electronic Data Involved: ESI

Mitchell Eng?g. v. City of San Francisco, 2010 WL 2951856 (N.D. Cal. July 27, 2010)

Dec 01 2010

Key Insight: Where plaintiff offered to produce hard copy ?job files? for non-city projects as an alternative to conducting key word searching of 25 custodians to identify emails related to non-city projects but where defendant objected that hard copy was less searchable and would not contain all relevant emails, court denied defendant?s motion to compel keyword searching and production of ESI citing the more than two month delay since the issue was first raised, the close proximity of trial, and the court?s inability to determine the relevance of the 188 proposed search terms and ordered plaintiff?s production of hard copy files

Electronic Data Involved: Emails, ESI, hard copy

Cherrington Asia Ltd. v. A&L Underground, Inc., 2010 WL 126190 (D. Kan. Jan. 8, 2010)

Dec 01 2010

Key Insight: Court denied sanctions for defendants? alleged ?document dump? of a hard drive containing both responsive and non-responsive documents as maintained in the ordinary course of business where, upon plaintiffs? initial objection, defendants re-produced the hard drive with irrelevant documents segregated and with a tool allowing the hard drive to be word-searched and where, despite plaintiffs? alleged discovery of evidence reflecting defendants? purposeful efforts to obstruct discovery, plaintiffs waited 15 months to bring their motion and were thus ?simply too late?

Electronic Data Involved: Computer hard drive

Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., 2010 WL 4337388 (W.D. Pa. Oct. 27, 2010)

Dec 01 2010

Key Insight: Where defendants sought to avoid searching and producing emails and related documents maintained by defendants? CEO and CTO and argued that they had already produced 5.5 million pages and that the information sought was cumulative and therefore imposed an undue burden, the court noted defendants admission that they had not searched or reviewed the materials of the relevant executives and found that plaintiff had shown the likelihood that such a search could lead to the discovery of relevant evidence and ordered the executives? materials to be searched and if responsive, produced

Electronic Data Involved: Executives’ ESI

Radian Asset Assurance, Inc. v. Coll. Of the Christian Bros. of New Mexico, 2010 WL 4338057 (D.N.M. Sept. 15, 2010)

Dec 01 2010

Key Insight: Where parties could not reach agreement regarding parameters of search protocol, court ordered defendant to utilize search terms proposed by plaintiff but declined to order search of email at the present time, established the appropriate date range, and ordered defendants to produce ?exculpatory information?, i.e., ?anything that the College … believes [plaintiff] could reasonably use or could reasonably lead to admissible evidence?; court declined to order defendant to produce the files identified as a result of the search and ordered instead the production of a report of the results and for the parties to confer regarding the results

Electronic Data Involved: ESI

Colony Ins. Co. v. Danley, Inc., 2010 WL 3894203 (D. Me. Oct. 4, 2010)

Dec 01 2010

Key Insight: Where defendants? counsel refused to electronically search its files for potentially responsive information, the court found the data ?not reasonably accessible? and denied plaintiffs? motion to compel the search where defendants? counsel had already spent 30 hours searching and had produced or logged the documents discovered in that search, and where plaintiffs? offered ?no reason to believe that further responsive documents exists or, if any do, that they are not cumulative??; ?alternatively? court denied the motion ?pursuant to 26(b)(2)(c)? where ?the burden ? of the proposed discovery outweighs its likely benefit?

Electronic Data Involved: Electronic contents of files of defendants’ counsel