Electronic Discovery Law – Page 239 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Johnson v. Neiman, 2010 WL 4065368 (E.D. Mo. Oct. 18, 2010)

Dec 01 2010

Key Insight: Court granted defendants? motion for a protective order precluding their obligation to produce evidence contained only on backup tapes where defendants made a sufficient showing of the burden to do so in terms of both money and time and where plaintiff was unable to establish good cause to compel the production; court found it ?most significant? that plaintiff had ?no idea what, if any? discoverable information could be obtained by the restoration and search of the tapes

Electronic Data Involved: Emails stored on backup tapes

ANZ Advanced Techs., LLC v. Bush Hog, LLC, No. 09-00228-KD-N, 2010 WL 3699917 (S.D. Ala. Sept. 9, 2010)

Dec 01 2010

Key Insight: Court declined to reconsider its prior order directing plaintiff to produce certain hard drives and other data storage devices for forensic inspection where plaintiff failed to establish that such production was prohibited by Indian law and where plaintiff offered no evidence to rebut the court?s prior determination that plaintiff?s behavior ?cast serious doubt on the authenticity of any document produced? by plaintiff such that actual production of the devices was warranted

Electronic Data Involved: Hard drive, data storage devices

Partminer Worldwide, Inc. v. Siliconexpert Techs., Inc., 2010 WL 4004164 (D. Colo. Sept. 23, 2010)

Dec 01 2010

Key Insight: Based upon suspicious timing of the disappearance of ESI, the court inferred that evidence had been destroyed in bad faith by a person who knew that it would ?very well reveal information Defendants did not want revealed? and ordered an adverse inference instruction to the jury at trial, that plaintiff should be permitted to amend its claims to add a claim for exemplary damages based on the adverse inference, that defendants pay plaintiff?s costs and fees, and that defendants make unredacted mirror images of the hard drives of each employee of the corporate defendant at defendants? expense, to be delivered to plaintiff by a date certain; hard drives were covered by a previously entered protective order

Electronic Data Involved: Email, ESI

Olem Shoe Corp. v. Wash. Shoe Co., 2010 WL 3981694 (S.D. Fla. Oct. 8, 2010)

Dec 01 2010

Key Insight: Court found no waiver of privilege resulting from commercial copy service?s inadvertent disclosure of privileged materials to plaintiff?s counsel where the disclosure was clearly inadvertent, where reasonable steps were taken to protect the privilege including clear instructions to the copy service and clearly marking the documents as privileged, and where defense counsel acted promptly to rectify the error after learning of the disclosure; court rejected arguments that defense counsel waived privilege by a delay in seeking the documents? return where such delay was directly related to plaintiff?s decision to notify only defense counsel?s paralegal of the disclosure, who inexcusably failed to pass that information on to counsel, and where defense counsel requested the documents? return on the same day he actually learned of the disclosure

Electronic Data Involved: Privileged ESI

Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL 3718867 (W.D. Pa. Sept. 20, 2010)

Dec 01 2010

Key Insight: Stating that ?it is defendant?s responsibility to demonstrate objectively reasonable compliance? with the rules regarding ESI, the court found that defendants had failed to do so and denied their motion for a protective order; granting plaintiff?s motion to compel, the court ordered the parties to meet and confer to identify custodians for the purpose of limited discovery/sampling and to identify search terms to be utilized; court ordered defendants to identify potentially responsive ESI sources and to provide a reasonable description of the information stored therein in compliance with Local Rule 26.2

Electronic Data Involved: ESI, emails

Smith v. Mpire Holdings, LLC v. 2010 WL 3294184 (M.D. Tenn. Aug. 12, 2010)

Dec 01 2010

Key Insight: Court denied motion to compel defendants to sign releases authorizing ISPs to disclose ?all account information, electronic data, information and emails associated with numerous internet website domains? where ?given the nature of the transactions? at issue, such information would be likely to involve the confidential matters of numerous third parties and where the court was unable to protect those parties from ?unauthorized disclosure of their confidential records and information?; court analysis included finding that defendants had control of the electronic information in the custody of the ISPs ?because, according to federal statute, they may consent to grant access to their information?

Electronic Data Involved: All account information, electronic data, information and emails associated with numerous internet website domains

Jeanes-Kemp, LLC v. Johnson Controls, Inc., 2010 WL 3522028 (S.D. Miss. Sept. 1, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for protective order as to two inadvertently produced privileged documents where the production was inadvertent, where discovery was reviewed by three attorneys prior to production and thus efforts to prevent disclosure were reasonable, and where upon notice of disclosure, counsel took immediate steps to retrieve the documents; court declined to sanction defense counsel for threatening use of the inadvertently disclosed documents where plaintiff?s motion for protective order was granted and where defendants had not yet had the opportunity to use the documents as threatened

Electronic Data Involved: Inadvertently produced emails

Chevron Corp. v. Stratus Consulting, Inc., 2010 WL 3489922 (D. Colo. Aug. 31, 2010)

Dec 01 2010

Key Insight: Court granted petitioner?s motion to compel production of subpoenaed information in native format, including re-production of materials already produced in .pdf format, where, despite respondent?s objections, the court determined the underlying metadata could be probative, but ordered petitioner to bear the cost where the subpoena had been ?less than clear? regarding the format of production and where respondents? claims of undue burden ?carrie[d] some legitimacy?; court?s opinion acknowledged respondent?s argument regarding the inability to Bates stamp native documents and ordered that the documents be Bates-stamped ?only as technologically possible?

Electronic Data Involved: ESI

Nycomed U.S. Inc. v. Glenmark Generics, Ltd., 2010 WL 3173785 (E.D.N.Y. Aug. 11, 2010)

Dec 01 2010

Key Insight: For failing to abide by its good-faith discovery obligations by withholding from production, without justification, certain relevant ESI and ?willfully fail[ing] to search two important and obvious repositories for responsive ESI?, the court determined that ?substantial monetary fines, payable to Nycomed and to the Clerk of the Court, are appropriate sanctions, as they will adequately advance ?the prophylactic, punitive and remedial rationales? of discovery sanctions? and ordered Glenmark to pay $100,000 to Nycomed ?to cover a portion of its costs? and to pay an additional $25,000 to the Clerk of the Court

Electronic Data Involved: ESI

Estate of Boles v. Nat?l Heritage Realty, Inc., 2010 WL 3087472 (N.D. Miss. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court denied motion for reconsideration of order compelling electronic production of defendants? general ledger and specifically rejected defendants? Rule 34 argument that because plaintiff failed to state the form of production, it could produce in hard copy, where defendants failed to specify a particular form of production in their response, where defendants failed to timely raise the Rule 34 issue (despite filing several motions discussing production of the ledger), and where defendants also failed to produce the evidence in the form in which it was ordinarily maintained or in a reasonably usable form as is required by the rule; a Motion to Stay this order was thereafter denied, See Estate of Boles v. Nat?l Heritage 2010 WL 3218386 (N.D. Miss. Aug. 7, 2010)

Electronic Data Involved: Electronic copy of general ledger