Electronic Discovery Law – Page 332 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Eckhardt v. Bank of Am., N.A., 2008 WL 1995310 (W.D.N.C. May 6, 2008)

Dec 01 2008

Key Insight: Where plaintiff established through deposition testimony that discoverable documents existed which had not been produced, but court found no bad faith, court declined to give adverse inference instruction and instead allowed plaintiff to seek missing documents from backup tapes and to corroborate substance of any missing documents from witnesses where documents themselves could be recovered

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email; backup tapes

In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008)

Dec 01 2008

Key Insight: District court upheld magistrate judge’s order quashing State Farm’s subpoena to AOL because: (1) plain language of Electronic Communications Privacy Act prohibited AOL from producing requested email because a civil discovery subpoena was not a disclosure exception under Act; (2) State Farm’s subpoena imposed undue burden because subpoena was overbroad; and (3) court where action was pending was better posed to decide privilege issues

Nature of Case: Former insurance adjusters alleged that State Farm committed fraud in connection with handling of Hurricane Katrina damage claims

Electronic Data Involved: Email stored on AOL’s servers

Metavante Corp. v. Emigrant Sav. Bank, 2008 WL 1969596 (E.D. Wis. May 5, 2008)

Dec 01 2008

Key Insight: Where source code had probative value and would be covered by protective order, court ordered defendant to produce it and suggested that parties coordinate to limit its disclosure to only specified experts and individuals at Metavante with requisite technical expertise needed to effectively evaluate the source code

Nature of Case: Breach of contract

Electronic Data Involved: Source code

Jackson v. AFSCME Local 196, 2008 WL 1848901 (D. Conn. Apr. 25, 2008)

Dec 01 2008

Key Insight: Where nonparty stated that in-depth electronic search would need to be conducted in order to produce responsive documents, thus resulting in substantial cost to nonparty, court ordered nonparty to provide plaintiff with estimate of cost and explanation of fees, with copy to court, before embarking on search so plaintiff could decide whether she wished nonparty to proceed; court further ruled that plaintiff must pay nonparty’s compilation fees before delivery of documents to plaintiff

Nature of Case: Union member alleged that union breached its duty of fair representation

Electronic Data Involved: Unspecified ESI

Baird v. Dept. of the Army, 517 F.3d 1345 (Fed. Cir. 2008)

Dec 01 2008

Key Insight: Finding that administrative judge abused his discretion in refusing to compel production of relevant email, and given defendant?s ?lax attitude? towards compliance with plaintiff?s discovery requests, court vacated final decision of Board and remanded case to Board, to be remanded to administrative law judge with directions to order defendant to promptly produce all relevant emails and to assure that all relevant personnel either had already, or will promptly, produce all relevant emails; if such production of email resulted in further evidence to support Baird’s theory, administrative judge to afford Baird another hearing

Nature of Case: Civilian employee at Army hospital sought review of Merit Systems Protection Board final decision sustaining her termination for having failed random drug test

Electronic Data Involved: Email

Advante Int’l Corp. v. Mintel Learning Tech., 2008 WL 928332 (N.D. Cal. Apr. 4, 2008)

Dec 01 2008

Key Insight: Where court had earlier ruled that defendant could recover attorney fees and costs relating to motion to compel and forensic inspection of plaintiff?s computer servers, court denied defendant?s subsequent request for $944,902 in attorneys? fees and instead awarded $105,000 as reasonable amount of attorneys? fees incurred; court further ordered plaintiff to pay neutral computer expert only for fees directly related to forensic inspection and not for those related to defendant’s advocacy in the action

Nature of Case: Misappropriation of intellectual property

Electronic Data Involved: Computer servers

U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)

Dec 01 2008

Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner

Nature of Case: Breach of contract, account stated, open account, and unjust enrichment

Electronic Data Involved: Computer hard drives of plaintiff’s employees

Global Technical Search, Inc. v. Jacobsen, 2008 WL 789929 (S.D. Cal. Mar. 21, 2008)

Dec 01 2008

Key Insight: Where defendant certified that he had deleted any and all of plaintiff’s proprietary information from his computer and stipulated to plaintiff’s requested relief, court ordered that a mutually acceptable representative of plaintiff be allowed to examine defendant’s computer to confirm permanent deletion of proprietary information

Nature of Case: Misappropriation of confidential and proprietary information

Electronic Data Involved: Recruiting firm’s database; computer hard drive

Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 783301 (N.D. Ill. Mar. 25, 2008)

Dec 01 2008

Key Insight: Where requesting party complained that information generated and produced in response to agreed-upon keyword search of ?Goldmine? database was inadequate and not rectified by index of customer information documents subsequently provided, and that additional information (such as dates) was needed, court ordered parties to confer about how date information could be retrieved and granted motion to compel only to the extent that requesting party?s consultant would be allowed to run his original protocol to determine if date information should have been produced in conformity with that protocol; costs to be borne by requesting party unless it appeared that date information had been wrongly withheld, in which case responding party would bear all of the costs, expenses and attorneys’ fees resulting from nonproduction of the information

Nature of Case: Trademark infringement

Electronic Data Involved: Goldmine customer relations management database

In re Seroquel Prods. Liab. Litig., 2008 WL 508391 (M.D. Fla. Feb. 21, 2008)

Dec 01 2008

Key Insight: Court issued a number of discovery rulings, among them an order requiring AstraZeneca to produce communications between members of the Benefit/Risk Team for Seroquel; court reasoned: “Given the scope of this litigation, requiring a limited number (even 100) of known individuals to search for significant information is not an undue burden.”

Nature of Case: Drug product liability

Electronic Data Involved: Email