Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008)

In this case, one of plaintiff’s requests for production sought emails — plaintiff provided defendant with search terms and desired to have all emails that contained the relevant search terms.  Defendant complied with the request and produced approximately 75,000 pages of email documents on disk.  However, defendant designated the entire email production as Type C documents, “Attorney-Eyes-Only," pursuant to the parties’ agreed protective order. 

Plaintiff thereafter filed a motion to compel compliance with the protective order, and for sanctions.  At issue was whether defendant violated the terms of the parties’ protective order by designating all emails as “attorney eyes only,” and whether defendant should be required to re-produce the email in a different format.

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In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008)

In this decision, the district court adopted the Special Master’s Report and Recommendation concerning the Motion of AMD and Class Plaintiffs to compel Intel to produce notes of its counsel’s investigation interviews of designated employees concerning Intel’s compliance with its evidence preservation obligations (the “Weil Materials”).  The Weil Materials included notes taken during and after the custodian interviews, meeting notices, emails between attorneys regarding the interviews, etc.  The court ordered Intel to produce the requested Weil Materials, as redacted by the Special Master.

Intel’s Preservation Efforts

On June 27, 2005, AMD filed its complaint against Intel.  On the same date, upon learning of the filing of the complaint, Intel assembled a team to put into place a process to "identify and preserve relevant paper and electronic documents" across six different continents.  Intel described its document retention plan as being tiered and having multiple layers of retention, including:

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R & R Sails Inc. v. Ins. Co. of Pa., 251 F.R.D. 520 (S.D. Cal. 2008)

After a fire destroyed plaintiff’s manufacturing facility, defendant paid plaintiff for loss of property, but plaintiff claimed that the value of all lost property exceeded the amount paid.  Plaintiff also sought further payment under the insurance contract for loss of income, business interruption and extra expenses.  Plaintiff sued to enforce the contract, and also alleged bad faith in the handling of the claim.

In discovery, plaintiff noted that "conspicuously absent" from defendant’s production of documents were "electronic or handwritten daily activity records/logs which are generally kept with an adjuster’s notes and telephone call records.”   Defendant insisted that the documents did not exist.  During a discovery conference on the matter, the court expressed doubt as to the records’ nonexistence and ordered defendant either to produce the requested documents or submit a sworn declaration that the records did not exist.  Defendant thereafter submitted a sworn declaration from its senior property claims examiner (Lombardo) stating that "[t]here were no daily activity logs or telephone record logs that were created or maintained in connection with plaintiff’s claim."

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Johnson v. Wells Fargo Home Mortgage, Inc., 2008 WL 2142219 (D. Nev. May 16, 2008)

In this case, plaintiff alleged that defendant erroneously reported two of his real property mortgage loans delinquent to credit reporting agencies.  Plaintiff claimed that defendant foreclosed on one loan and continued to erroneously report both loans delinquent after plaintiff spent nine months making multiple phone calls and sending correspondence, including cancelled checks and loan documents, verifying the loans were current.

Defendant contended that plaintiff’s Fair Credit Reporting Act claim was supported with various letters he drafted on his two laptops and were “the very foundation of his claim.”  Defendant further contended that computer evidence revealed plaintiff may have manufactured the documents to support his claim and then flagrantly reformatted the hard drives on the laptops shortly after defendant informed him that they had been formally requested and were relevant to the case.

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Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008)

In this case, plaintiff sought a ruling that 165 electronic documents produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status.  The parties had previously agreed to a joint protocol to search and retrieve relevant ESI responsive to plaintiff’s Rule 34 requests.  The protocol contained detailed search and information retrieval instructions, including nearly five pages of keyword/phrase search terms aimed at locating responsive ESI.

In March 2007, defense counsel notified the court that individualized privilege review of the responsive ESI would delay production unnecessarily and cause undue expense.  To address this concern, defendants gave their computer forensics expert a list of keywords to be used to search and retrieve privileged and protected documents from the population of documents that were to be produced to plaintiff, and requested that the court approve a “clawback agreement” fashioned to address the concerns noted in Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005).  Later, when the discovery deadline was extended, defense counsel notified the court that defendants would be able to conduct a document-by-document privilege review, thereby making a clawback agreement unnecessary.  Following their privilege review, defendants produced responsive ESI in September 2007.

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Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008)

In this case, plaintiff (a lawyer) brought claims under the Ohio Consumer Sales Practices Act based upon emails he received.  Because only the unsolicited emails plaintiff received would support his claim under the Act, it was necessary for the parties to ascertain which of the emails plaintiff received were unsolicited.  Plaintiff’s computer systems contained the only available documentary evidence that could show the pathways taken by plaintiff to solicit the emails or the absence of those pathways.

Defendants requested an inspection of plaintiff’s computer systems so as to ascertain whether plaintiff’s efforts with respect to receiving the emails and visiting the websites (that were at the heart of the action) constituted a consumer transaction under the OCSPA, or whether plaintiff’s opening of the emails and any attempts to obtain free merchandise were part of a business designed to profit from email litigation

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