Electronic Discovery Law – Page 274 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Craig & Landreth, Inc. v. Mazda Motor of Am., Inc., 2009 WL 2245108 (S.D. Ind. July 27, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s argument that production of ESI in PDF format was ?well within the requirements? of the rules where plaintiffs sought production in a searchable format and where the rules prohibit conversion to a more burdensome format for production, court granted plaintiffs? motion to compel and ordered production in native format and also ordered defendant to produce ?the appropriate individual? to assist plaintiffs in ?understanding how to manipulate the ?native format?? ESI produced

Electronic Data Involved: ESI

Medcorp, Inc. v. Pinpoint Tech., Inc., 2009 WL 2194036 (D. Colo. July 14, 2009)

Dec 01 2009

Key Insight: Noting that a party seeking discovery from a non-party ?must satisfy a burden of proof heavier than the ordinary burden imposed by Rule 26 relating to discovery on any matter relevant to the subject matter involved in the pending action,? the special master quashed certain of plaintiff?s requests as overly broad and unduly burdensome including a request for forensic copies of a non-party?s employee work stations and server computers and a request for detailed information related to a the non-party?s technical environment, among others

Electronic Data Involved: Forensic copies

Nieves v. Kmart Corp., 2009 WL 1605623 (V.I. June 8, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion for a spoliation instruction where plaintiff failed to demonstrate that the allegedly spoliated videotape ever existed and where a witness testified at deposition that since he didn?t keep the videotape after checking it, it means no film was made of the relevant incident

Electronic Data Involved: Videotape

Clubcom, LLC v. Captive Media, Inc., 2009 WL 1885712 (W.D. Pa. June 30, 2009)

Dec 01 2009

Key Insight: Where four privileged emails were produced among 4000 documents (in hard copy), where there was no indication that plaintiff produced the documents intentionally or failed to take reasonable precautions to prevent disclosure, and where plaintiff immediately took reasonable steps to rectify the error, court ruled privilege was not waived pursuant to Fed. R. Evid. 502(b)

Electronic Data Involved: Privileged emails

Flying J. Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1834998 (D. Utah June 25, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of transaction data and rejected plaintiffs? arguments that defendants should be required to make a reciprocal production and that absent such reciprocity plaintiffs? production would be unduly burdensome; court found defendant?s request for use of additional search terms to identify responsive emails was not unduly burdensome where defendant was added to litigation late and where plaintiffs therefore assumed the risk of increased costs in light of expanded claims

Electronic Data Involved: Transaction data, emails

Flying J. Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1835000 (D. Utah June 25, 2009)

Dec 01 2009

Key Insight: Where plaintiffs? request for production sought both data and summaries of data, court granted plaintiffs? motion to compel production of the requested data but found defendants were not required to compile or summarize information in their response (?[A] request for production cannot require a responding party to compile and summarize.?); court rejected defendant?s argument that production of the requested data would be unreasonably burdensome without reciprocal productions from plaintiff finding ?[a] party is not excused from making disclosures because ?another party has not made it disclosures.??

Electronic Data Involved: Transaction data from defendant’s database(s)

Dahl v. Bain Capital Partners, LLC 2009 WL 1748526 (D. Mass. June 22, 2009)

Dec 01 2009

Key Insight: Briefly but comprehensively addressing a number of electronic discovery issues, court declined to shift discovery costs to the requesting party, declined to order defendants to bear the cost of changing the format of their responsive documents for production (unless such conversion was necessary to render the documents ?usable?), declined to order the production of all metadata and instead limited production to 12 fields of metadata proposed by plaintiffs, and ordered the production of spreadsheets and privilege logs in native format

Electronic Data Involved: ESI, metadata

Kumar v. Hilton Hotels Corp., 2009 WL 1683479 (W.D. Tenn. June 16, 2009)

Dec 01 2009

Key Insight: Court endorsed ?middle ground? approach to a determination of the waiver of privilege, as adopted by FRE 502, and ordered the return of privileged and work product documents produced by defendant upon finding that the production was inadvertent, that defendant took reasonable steps to prevent disclosure, that counsel took immediate steps to rectify the error and that ?the number and magnitude of the disclosures in light of the overall production weigh[ed] against waiver?

Electronic Data Involved: Privileged email and hard copy

Green v. Fluor Corp., 2009 WL 1668376 (M.D. La. June 11, 2009)

Dec 01 2009

Key Insight: Where defendants failed to request production of a photograph taken by cell phone in electronic format and later contested plaintiff?s format of production, court denied defendants? motion to compel production and inspection upon noting defendants? failure to contest the photos authenticity or to show that viewing the original would provide information not already in their possession and upon noting Rule 34?s instruction that a party need not produce the same electronically stored information in more than one form

Electronic Data Involved: Photograph taken with cellular phone

Hale v. Coors Distrib. Co., 2009 WL 1600678 (D. Colo. June 5, 2009)

Dec 01 2009

Key Insight: Finding that plaintiff?s counsel?s understanding of defendant?s computer capabilities was ?neither thorough nor accurate? and that the lack of understanding resulted in an inability to adequately articulate the nature of the information sought, and finding that the lack of understanding was attributable to both parties, court considered six part test to determine whether discovery should be re-opened and then granted plaintiff?s request for additional discovery, limited by the court?s instructions

Electronic Data Involved: Database information