Electronic Discovery Law – Page 360 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Square D Co. v. Scott Elec. Co., 2007 WL 3488809 (W.D. Pa. Nov. 14, 2007)

Dec 01 2007

Key Insight: Declining to impose sanctions at this stage of litigation, court reiterated its prior order requiring defendant to submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at defendant’s sole expense and cost; court further denied defendant’s motion for protective order for lack of good cause

Nature of Case: Circuit breaker manufacturer alleged that defendants unlawfully imported, distributed, and sold counterfeit Square D products

Electronic Data Involved: Defendant’s computer systems

Coleman v. Blockbuster, Inc., 2007 WL 4084281 (E.D. Pa. Nov. 15, 2007)

Dec 01 2007

Key Insight: Where defendant produced employment statistics from its database on a CD, but not in the format that plaintiffs wanted, court found that defendant had complied with Rule 34(b) requirement that ESI be produced ?in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable,? and denied plaintiffs? motion to compel and for sanctions

Nature of Case: Employment discrimination

Electronic Data Involved: Employment statistics

Children’s Legal Servs. P.L.L.C v. Kresch, 2007 WL 4098203 (E.D. Mich. Nov. 16, 2007)

Dec 01 2007

Key Insight: Court denied motion to compel answers to multi-part interrogatory seeking each email address, mobile phone number, internet username, and instant messaging username used by any employee, associate, partner, paralegal, shareholder or other person who worked with defendant and was involved in the provision, referral or advertisement of legal services connected to the disputed service mark or any permutation thereof, finding it unduly broad, burdensome and not limited to the discovery of relevant matters

Nature of Case: Service mark infringement claims

Electronic Data Involved: Email addresses and user names

Fortis Corporate Ins., SA v. Viken Ship Mgmt. AS, 2007 WL 3287357 (N.D. Ohio Nov. 5, 2007)

Dec 01 2007

Key Insight: Court denied plaintiff’s motion for spoliation sanctions, finding no basis in the record for concluding that defendant’s failure to preserve email and other materials was so blameworthy that defendant should be deprived, either in whole or part, of the opportunity to defend the case on the merits, and adding: “Perhaps in the fullness of time foreign-based companies doing business in the United States will be held to the same ‘litigation holds’ and other devices now routinely applied by litigants here to make sure pertinent documents and other materials are retained and produced. And perhaps they should be held to the same standards in an era of ever-expanding global trade. Increasingly negligence on the other side of the globe can cause injury locally.”

Nature of Case: Subrogation action against foreign-based shipowner

Electronic Data Involved: Email

Bakhtiari v. Lutz, 2007 WL 3377215 (8th Cir. Nov. 15, 2007)

Dec 01 2007

Key Insight: District court did not abuse its discretion in refusing to impose spoliation sanctions against defendant university for deletion of former teaching assistant’s email account, where university backed-up the contents of the account onto two CDs before deleting it, and the deletion occurred before the lawsuit was filed

Nature of Case: Employment discrimination, civil rights

Electronic Data Involved: Email

Goshawk Dedicated Ltd. v. American Viatical Servs., LLC, 2007 WL 3492762 (N.D. Ga. Nov. 5, 2007)

Dec 01 2007

Key Insight: Court ordered production of a complete copy of defendant’s Sequel database, and any historical backup copies of database spanning relevant time period, since it was highly relevant to parties’ claims and defenses and defendant had not articulated a valid legal basis for resisting its disclosure; court further ordered that the database was to be treated as “Highly Confidential” pursuant to court’s confidentiality order

Nature of Case: Fraud and negligence claims

Electronic Data Involved: Database

Am. Fast Freight, Inc. v. Nat’l Consol. & Distrib., Inc., 2007 WL 3357694 (W.D. Wash. Nov. 7, 2007)

Dec 01 2007

Key Insight: Court granted plaintiffs’ motion to compel production of: (1) electronic data used to answer interrogatories, (2) information systems organizational charts, (3) policies and records regarding electronic data, electronic backup, electronic data retention and destruction, finding that the requests could lead to relevant evidence regarding what efforts defendant made to preserve ESI, since plaintiffs alleged that defendant failed to produce ESI with its initial disclosures under FRCP 26(a)(1)

Nature of Case: Breach of contract, unjust enrichment

Electronic Data Involved: ESI used to answer interrogatories; backup and retention policies

Doe v. Morey Charter Sch., 2007 WL 2331864 (E.D. Mich. Aug. 14, 2007)

Dec 01 2007

Key Insight: District court overruled plaintiff’s objections to magistrate judge’s order denying in part motion to compel since order was not clearly erroneous; although plaintiff argued that more material should have been produced, defendants represented that they had produced everything and magistrate judge noted that both sides’ counsel had access to mirror images of hard drives containing the requested data which had been seized in police investigation

Nature of Case: Allegations of sexual abuse and harrassment by former elementary school teacher

Electronic Data Involved: Email and other ESI

Perez-Farias v. Global Horizons, Inc., 2007 WL 2327073 (E.D. Wash. Aug. 10, 2007)

Dec 01 2007

Key Insight: Where defendants failed to produce email, failed to properly preserve email, and had not complied with orders to timely produce discovery, nor paid plaintiffs’ costs of bringing discovery motions as ordered nor paid sanctions to court as directed, and repeatedly failed to follow local rules with respect to timely and properly filing documents, court granted plaintiff’s motion for case dispositive sanctions; trial would be on the issue of damages only, and only plaintiff’s evidence would be admitted given defendants’ failure to file witness or exhibit lists

Nature of Case: Employment discrimination

Electronic Data Involved: Email

KnifeSource, LLC v. Wachovia Bank, N.A., 2007 WL 2326892 (D.S.C. Aug. 10, 2007)

Dec 01 2007

Key Insight: Where defendant stated it did not maintain physical copies of statements and that compliance with production request would impermissibly require it to create documents, court found that defendant had not shown requested information was “not reasonably accessible” and ordered production to the extent defendant maintained any of the requested information electronically

Nature of Case: Conversion

Electronic Data Involved: Customer account statements