Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: District court judge adopted magistrate judge’s January 17, 2007 report and recommendation, overruling objections of the parties
Nature of Case: FOIA action
Electronic Data Involved: Hard copy file
Key Insight: Court overruled plaintiff?s objection to Rule 30(b)(6) notice of deposition seeking testimony of person most knowledgeable about plaintiff?s computers/mainframe, which also requested that the deponent bring the mainframe or the ability to access the mainframe with him/her at the time of the deposition; court found that the information was relevant and discoverable, subject to the noticing party?s concession to take the deposition at the place of the mainframe
Nature of Case: Insurance coverage
Electronic Data Involved: Mainframe computer
Key Insight: Court granted defendant’s motion to compel forensic inspection of plaintiff’s computer and defendant’s sole expense, but limited the scope of the inspection to determining whether, during the relevant time period, plaintiff accessed defendant’s website or a website which advertised defendant’s services, what interaction plaintiff had with such websites and what, if any, information concerning those internet transactions was subsequently deleted
Nature of Case: Cellular phone user alleged that defendant violated the Telephone Consumer Protection Act of 1991 by sending text messages to plaintiff’s cell phone without his permission
Electronic Data Involved: Plaintiff’s computer hard drive
Key Insight: Where principal of co-plaintiff forwarded 15 email exchanges with counsel to plaintiffs’ testifying expert witness, and expert witness produced them as part of his file even though he stated he did not consider them when forming his opinion, court ordered production of such emails under Rule 26(a)(2)(B)
Nature of Case: Breach of contract and waste
Electronic Data Involved: Privileged emails
Key Insight: Court imposed sanctions of default judgment and award of reasonable attorney fees and costs based upon defendants’ pattern of discovery misconduct, which included defendant’s lying under oath regarding key issue in case and failing to produce key “smoking gun” documents; court set hearing to determine the appropriate amount of damages and fees and costs
Nature of Case: Action for specific performance of asset purchase agreement
Electronic Data Involved: Email
Key Insight: Where plaintiff withheld and destroyed relevant documents and committed other egregious discovery abuse, but other factors weighed against dismissal, court concluded that less extreme sanctions were appropriate and precluded plaintiff from presenting certain arguments at trial and from seeking damages related to the termination of his employment
Nature of Case: Plaintiff sued publisher alleging breach of a promise to keep his name and employer confidential
Electronic Data Involved: Email
Key Insight: Where court had earlier ordered production and inspection of defendants’ computer, but had also entered a protective order governing such production and inspection, court declined to sanction defendants and found that the most “just manner” to apportion fees and costs was for each of the parties to pay their own
Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal
Electronic Data Involved: Computer hard drive of subject computer
Key Insight: Where defense expert witnesses testified that defense counsel prepared the first drafts of reports, and revisions and changes were often exchanged through email, and plaintiff contended that it could not tell whether all drafts were produced, nor could it tell who created and/or revised each draft, court ordered defendant to produce copies of all drafts of all expert opinions, together with all communications between defendant?s employees or counsel and expert witnesses regarding the drafts; court further ordered defendant to provide a declaration of counsel confirming full production and explaining the chronology of the revisions and the author of each set of revisions; declaration would be binding on defendant and could be used for cross-examination of expert witnesses
Nature of Case: Patent infringement
Electronic Data Involved: Email and draft expert reports
Key Insight: Court awarded $22,371 in sanctions representing plaintiff’s reasonable attorneys’ fees and expenses incurred in connection with earlier motion to compel that court granted on November 14, 2006; court further ordered that plaintiff’s second motion to compel relating to the same issues would be set for hearing
Nature of Case: UCC claims arising from defendant’s Internet-based check service
Electronic Data Involved: Databases
Key Insight: Where defendant discarded his hard drive the day after the lawsuit was filed, court granted plaintiff’s motion for spoliation sanctions but ordered plaintiff to pare down the requested fees and expenses to those having a proximate causal nexus to the spoliation; court further ordered counsel to meet and confer on the issue
Nature of Case: Company sued former employee who downloaded proprietary files just prior to resigning and going to work for competitor
Electronic Data Involved: Confidential files
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