Electronic Discovery Law – Page 325 – Legal issues, news and best practices relating to the discovery of electronically stored information.

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 4427269 (D. Kan. Sept. 25, 2008)

Dec 01 2008

Key Insight: Court denied without prejudice plaintiff’s request for order compelling defendants to produce emails and attachments in native electronic format with metadata intact, pending plaintiff’s obtaining a computer expert to advise on the issue; court further allowed plaintiff?s request for additional time to retain expert to analyze ESI produced by defendants, and, if necessary, to designate such expert as trial witness

Nature of Case: Wrongful termination, FMLA violations, retaliation

Electronic Data Involved: ESI, primarily email and attachments

Nucor Corp. v. Bell, 2008 WL 4442571 (D.S.C. Jan. 11, 2008)

Dec 01 2008

Key Insight: Where parties submitted competing expert testimony in support of and in opposition to plaintiff’s motion for spoliation sanctions, court also considered and ruled upon parties’ cross-motions to exclude their opponent’s computer forensics expert under FRE 702 and Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579 (1993)

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop and USB flash-drive device

Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to establish relevance of comment that was posted by individual defendant on Dattallegro?s web log (?blog?) but was later made unavailable for public access, and defendants had represented to court that they intended to meet their discovery obligations and would meet and confer with plaintiff to define scope of parties’ preservation obligations and protocols, court rejected plaintiff?s claim that defendants had destroyed relevant evidence and denied motion for preservation order

Nature of Case: Patent infringement

Electronic Data Involved: Web log comment

Gen. Elec. Co. v. SonoSite, Inc., 2008 WL 4062098 (W.D. Wis. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where both sides argued that the other side had not produced all responsive information and it appeared to court that there were a few places in which parties may not have yet looked, court gave parties one last chance to look for responsive material before it would hold them to their ?the documents don’t exist? positions and warned that lack of diligence or forthrightness would result in sanctions; court further denied plaintiff?s request to modify protective order that required source code be made available on a computer at producing party?s office for viewing by opposing party

Nature of Case: Patent infringement

Electronic Data Involved: Source code

In re Carco Elecs., 536 F.3d 211 (3rd Cir. 2008)

Dec 01 2008

Key Insight: Where party was dissatisfied with scope and degree of protection afforded by trial court?s protective order relating to production of source code, and appealed, Third Circuit found that the discovery order was neither final nor appealable and dismissed appeal

Nature of Case: Bankruptcy

Electronic Data Involved: Source code

Arista Records, LLC v. Does 1-12, 2008 WL 4133874 (E.D. Cal. Sept. 4, 2008)

Dec 01 2008

Key Insight: Good cause existed to grant plaintiffs’ application for expedited discovery prior to Rule 26(f) conference given possibility that ISP may destroy information that could identify Doe defendants, discovery request was narrowly tailored and would substantially contribute to moving case forward, and defendants could not be identified without requested information; to protect any privacy rights or first amendment protections of Doe defendants, court set out procedure for ISP to first contact subscribers prior to releasing their information and set deadlines for any motions to quash

Nature of Case: Copyright infringement

Electronic Data Involved: Names and contact information for ISP subscribers

Southridge Capital Mgmt., LLC v. Pitkin, 2008 WL 4150225 (Conn. Super. Ct. Aug. 18, 2008) (Unpublished)

Dec 01 2008

Key Insight: Where Commissioner was legally authorized to conduct an investigation, subpoena sought documents and ESI that were reasonably relevant to investigation, and Commissioner had valid concerns regarding completeness of plaintiff?s prior productions, court found that investigative subpoena was issued for a proper purpose and denied plaintiff?s motion to quash; court further rejected plaintiff?s claim that subpoena was unduly burdensome, noting that plaintiff had failed to present any documentary evidence of its cost estimates and that plaintiff must bear production costs like any other cost of doing business

Nature of Case: Securities investigation conducted by Connecticut Commissioner of Banking

Electronic Data Involved: Email and other ESI

Floyd v. City of New York, 2008 WL 4179210 (S.D.N.Y. Sept. 10, 2008)

Dec 01 2008

Key Insight: Where all information in particular NYPD database was relevant to plaintiffs? claims and not subject to law enforcement privilege, court granted plaintiffs? motion to compel production of data with exception of names of suspects and police officers and subject in part to protective order to be negotiated by parties or imposed by court

Nature of Case: Class action alleging defendants sanction a policy and practice of stop and frisks by the New York Police Department on the basis of race and ethnicity

Electronic Data Involved: NYPD database

Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008)

Dec 01 2008

Key Insight: Remanding case for new trial on other grounds, appellate court noted that trial court may have committed an error of law, in analyzing plaintiff?s request for adverse inference instruction as sanction for government?s failure to preserve email, by equating the intentional conduct necessary for such an instruction with bad faith; appellate court would leave it to trial court to consider request for adverse inference instruction on remand, but observed that (even absent a court order) the duty to preserve material evidence arises not only during litigation but also extends to that period before litigation when party reasonably should know that evidence may be relevant to anticipated litigation

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Email

Reino de Espana v. Am. Bureau of Shipping, 2008 WL 3851957 (S.D.N.Y. Aug. 18, 2008)

Dec 01 2008

Key Insight: District court overruled Spain’s objections to Magistrate Judge?s various orders of November 3, 2006, January 25, 2007 and June 6, 2007

Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill

Electronic Data Involved: Email