Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Court granted defendants’ expedited motion to suspend requirement for Rule 26(f) conference in light of pending motions to dismiss and provision in Private Securities Litigation Reform Act that provides for automatic stay of discovery and other proceedings in all federal securities fraud actions while motions to dismiss are pending
Nature of Case: Securities litigation
Electronic Data Involved: Rule 26(f) conference
Key Insight: Where defendant argued that extracting requested information regarding 56,000 to 60,000 customer invoices from computer system would cost as much as $80,000, and alternative method for extracting information proposed by plaintiff was unsuccessful, court held parties to their prior agreement and determined that reasonable allocation was for plaintiff to pay 62 percent and defendant to pay the remainder; court further ordered defendant to provide proof of actual cost and proof of actual payment and stated that, if defendant is able to extract information for less than $80,000 or if parties arrive at different cost-shifting formula, that will control
Nature of Case: Trademark infringement
Electronic Data Involved: Customer information stored in database
Key Insight: Where plaintiff stored majority of its documents on third-party servers and failed to make payment to maintain the service, resulting in deletion of relevant documents, court declined to enter default judgment and monetary sanctions but instead would allow lesser sanction of adverse inference instruction, since (1) plaintiff had control, albeit indirectly, over destroyed information; (2) plaintiff was at least negligent in not taking any affirmative steps to preserve documents, and (3) evidence was relevant to defense
Nature of Case: Antitrust, tortious interference with contractual relations
Electronic Data Involved: Documents stored by plaintiff on third-party computer servers
Key Insight: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: Hard drives
Key Insight: District Court sustained plaintiff?s objection to magistrate judge?s discovery order to the extent that factual findings omitted consideration of an exhibit submitted with plaintiff?s motion, which constituted evidence of defendant?s past possession of email which should have been produced in response to a particular discovery request (the exhibit was an email that discussed at least one prior email which was not produced); court remanded to magistrate judge issue of whether to compel further response or production in response to that particular discovery request
Nature of Case: Prisoner asserted claims relating to prison’s Kosher Meal Program
Electronic Data Involved: Email
Key Insight: Where, at the start of the litigation, parties agreed to production of ESI in a particular format (?TIFF? files subject to a scanning process known as ?OCR?), court declined to compel defendants to comply with amended Rule 34 for future document productions, commenting: ?An amendment to the civil rules-nearly two year after the filing of the lawsuit, and long after the parties established a system for propounding electronic discovery-does not justify the abdication of the parties’ agreement, especially given the security concerns raised by Defendants about maintaining the confidentiality of electronic documents. Of course, if the parties can stipulate to the production of some materials in native electronic format, they are free to do so. Otherwise, the Court orders that production of additional materials shall proceed in accordance with the parties’ prior agreement.?
Nature of Case: Antitrust
Electronic Data Involved: Unspecified ESI
Key Insight: Finding that defendant had destroyed her computer and modem equipment with knowledge of her duty to preserve relevant evidence and in an attempt to protect herself from plaintiffs’ claims, court declined to enter default judgment and would instead: (1) preclude her from offering certain evidence and arguments at trial, and (2) give an adverse inference instruction to the jury
Nature of Case: Copyright infringement
Electronic Data Involved: Individual defendant’s computer and cable modem
Key Insight: Even if database was incomplete and potentially unhelpful, court found that plaintiff was nonetheless entitled to information contained in the database since it did have some value and was relevant to plaintiff?s damages case, and its production did not appear to involved undue cost or complexity
Nature of Case: Patent infringement
Electronic Data Involved: Database
Key Insight: Trial court did not abuse its discretion by declining to sanction GM for destruction of “superfluous and irrelevant computer evidence” on computer hard drive, since the information on the hard drive would not have increased or decreased the probability that plaintiff was involved in sending the inappropriate emails at issue in the case, and emails had already been discovered
Nature of Case: Wrongful discharge
Electronic Data Involved: Computer hard drive
Key Insight: Granting defendant’s motion for summary judgment, court drew adverse inference from plaintiff’s loss of records, “i.e., that the records from Mr. Wyatt’s May, 2002 hospital visit are unfavorable to Plaintiff and, therefore, suggest Mr. Wyatt had a pre-existing condition during the October and December, 2002 medical treatment,” as an appropriate sanction due to the prejudice their loss caused defendant in the litigation
Nature of Case: Medical provider sued insurer for failure to pay for services provided to insured
Electronic Data Involved: Medical records relating to insured’s earlier emergency room visit
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