Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008)

In this case involving claims of misappropriation of trade secrets, defendants objected to an order of a magistrate judge requiring them to disclose "forensically sound" images of certain data storage devices (Thermax’s India and Michigan servers) to plaintiffs’ counsel without any limitation as to the scope of the disclosure or prior filtering for privileged or work-product materials that the images might hold.  The production was required to permit a determination of whether defendants had violated an earlier stipulation and order that had imposed an ongoing obligation on defendants to return to plaintiffs any of plaintiffs’ files in their possession, and then to purge such files from their possession, custody and/or control.

The magistrate judge’s order had issued in the context of a dispute around the deposition of Stephen Wolfe, an employee of Huron Consulting Group, a computer forensic services firm relied on by defendants for both testifying and consultative expert work.  Wolfe testified that, at Thermax’s direction, he had performed two distinct tasks.  The first was to produce an expert report regarding whether an array of plaintiff’s information identified by plaintiff’s expert was located on a discrete set of data storage devices, after performing all necessary searches of images of the devices.  This set of devices did not include the India or Michigan servers.  The second task was to conduct electronic searches of images of Thermax’s India and Michigan servers for evidence of plaintiff’s files therein (which, in accordance with the parties’ earlier stipulation and order, already should have been disclosed to plaintiffs and purged).  The two tasks were different in several ways, as each task involved searches of different devices, with the searches involved in the former task providing the exclusive basis of Wolfe’s expert report, and the searches of the India and Michigan servers not informing his report in any respect.  In other words, Wolfe performed the former task in his capacity as a testifying expert, and performed the latter task in his capacity as a consulting expert.

Read More

Clearone Communications, Inc. v. Chiang, 2008 WL 704228 (D. Utah Mar. 10, 2008)

In this case involving claims of misappropriation of trade secrets, breach of contract and conversion, plaintiff sought sanctions for two claimed wrongs:  (1) defendants’ belated production of, and misrepresentations about, source code complete with developer comments; and (2) defendants’ failure to produce “smoking gun” email, which was produced by another party who was the recipient of the email.

The so-called “smoking gun” email was written by defendant Lonny Bowers on September 5, 2005.  Bowers was one of the founders and principals of defendant WideBand.  The email was only discovered in documents produced by defendant Biamp, the recipient of the email, not in any discovery from the WideBand defendants.  The WideBand defendants explained that the computer system used by Bowers did not retain copies of email sent by Bowers.  On this point, the court observed:

For any business this is a significant irregularity; almost unimaginable for a technology company; and even more unlikely for a person of Bowers’ importance in such a company.  Nonetheless, it does not appear that the September 5, 2005, email was withheld by WideBand Defendants — they did not have any copies of emails sent by Bowers. 

Read More

Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008)

In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired.  Defendant explained that another Equity employee had granted him permission to use the employee’s username and password to access a particular Equity computer system.  Defendant admitted that he had accessed the system some 18 times over a 90-day period, and had used his Macintosh computer to do it.

In November 2007, the district court issued a TRO prohibiting defendant from “accessing or attempting to access Equity Analytics, LLC’s data on Salesforce.com for any purpose.”  The judge initially struck from the TRO a requirement that defendant permit Equity to have a computer forensic expert examine his computer to ascertain:  (1) whether defendant accessed Equity’s confidential customer data and/or trade secrets; (2) whether the data has been forwarded to defendant’s new employer an Equity competitor; and (3) whether the data was purged or overwritten.  The parties subsequently agreed that a computer forensic specialist should be permitted to examine defendant’s Macintosh computer, but they could not reach agreement on the search protocol.

Read More

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)

The discovery dispute in this decision involved the City of Seattle’s request to have defendant Professional Basketball Club, LLC (“PBC”) search for and produce responsive emails for six of its eight members.  In January 2008, PBC produced approximately 150,000 emails from two members of PBC.  It objected to producing emails for the remaining six PBC members because such a search would “increase the universe exponentially” and would generally produce irrelevant documents.  The City moved to compel production of the requested emails.

The court first considered whether the requisite principal-agent relationship existed to establish that PBC had the legal right to obtain documents upon demand from its members.  The court analyzed PBC’s operating agreement under Oklahoma law, and concluded that the City had met its burden in establishing that PBC had “possession, custody, or control” over the at-issue documents for purposes of Fed. R. Civ. P. 34(a).

Next, the court found that the substance of the requested emails – information regarding the formation of PBC and the Sonics’ finances – may be relevant to the underlying issues.  Given the liberal discovery rules, the court declined to limit the City’s inquiry on relevancy grounds.  It stated that, whether such evidence warrants admissibility is a distinctly separate question that would be addressed at the appropriate time.

Finally, the court observed that the Federal Rules contemplate a specific requirement when a party objects to the production of electronically stored information, citing Fed. R. Civ. P. 26(b)(2)(B).  The court faulted PBC’s lack of specificity, stating that PBC had not explained why producing the emails at issue would be unnecessarily burdensome.  It continued:
 

Read More

Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008)

In this employment discrimination case, the court had previously ordered defendant to produce computer-generated reports of attempts by its employees to access adult websites at two of its branches during the relevant time period.  Although the court had denied plaintiffs’ request for email messages with adult content, it gave plaintiffs the option to file a motion for reconsideration after they had been given an opportunity to obtain evidence regarding defendant’s burden of production.  This opinion addresses plaintiffs’ renewed motion, in which they requested that defendant produce “at a minimum, documents showing any emails of a sexual or gender derogatory nature sent from 1998 through 2006.”

Evidence relating to defendant’s burden was as follows:

Read More

Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008)

In this case, plaintiff claimed that defendant wrongfully terminated her disability benefits in violation of ERISA.  Plaintiff also alleged that Hartford violated her right to privacy by causing its agent Dempsey Investigators to trespass onto her land and videotape her and her roommate through the kitchen window of plaintiff’s home.

When Hartford served its Rule 26(a)(1) initial disclosures, it indicated it was disclosing a copy of the administrative record related to plaintiff’s disability claim, and produced among other things copies of the claim file, electronic notes and surveillance videos conducted by Dempsey.  Due to what Hartford calls an "administrative oversight," the videos produced did not contain the footage of plaintiff in her kitchen.  Hartford later produced the “kitchen video” in a supplemental disclosure under Rule 26(e).  Hartford argued that it complied with its usual procedure and that a reasonable search was done, and that as soon as it discovered that the full video had not been disclosed it complied with Rule 26(e) and supplemented its earlier disclosure.

Plaintiff sought sanctions, alleging that Hartford failed to disclose the kitchen video in violation of Rule 26(a); that Hartford’s attorney certified Hartford’s initial and incomplete disclosure in violation of Rule 26(g); and that Hartford failed to produce the kitchen video in response to a particular request for production.  Plaintiff sought sanctions in the amount of the costs and attorney’s fees she spent taking the depositions of Dempsey witnesses and retaining the services of an expert.  She argued that she took these depositions and engaged this expert solely because defendant did not produce the kitchen video in a timely manner, and that she would not have otherwise engaged the expert, or taken the depositions.
 

Read More