Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

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Williams v. Sprint/United Mgmt. Co., 2007 WL 214320 (D. Kan. Jan. 23, 2007)
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Friel v. Papa, 829 N.Y.S.2d 569 (N.Y. App. Div. 2007)
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DE Techs., Inc. v. Dell, Inc., 2007 WL 128966 (W.D. Va. Jan. 12, 2007)
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ABN Amro Mortgage Group, Inc. v. Promised Land Mortgage LLC, 2007 WL 101812 (S.D. Ind. Jan. 8, 2007)
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Charles Schwab & Co., Inc. v. Karpiak, 2007 WL 136743 (E.D. Pa. Jan. 12, 2007)
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The Biggest Data Disaster Ever
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Court Defers Ruling on Defense Request to Inspect Hard Drives and for Sanctions, Ordering Plaintiff to Submit Affidavit Detailing Why Certain Emails were “Unloadable” and Efforts Taken to Retrieve the Information
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Plaintiffs Fail to Establish that Email in LotusNotes Format was “Not Reasonably Accessible Because of Undue Burden or Cost”
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Head of Rove Inquiry in Hot Seat Himself
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Plaintiff Ordered to Preserve Graphic Images Stored on Cell Phone

Williams v. Sprint/United Mgmt. Co., 2007 WL 214320 (D. Kan. Jan. 23, 2007)

Key Insight: Upon remand from district court judge, magistrate set out various reasons why he denied plaintiffs’ motion to the extent it sought to impose sanctions for defendant’s alleged failure to produce all spreadsheet materials in native format, its failure to timely produce spreadsheet materials, and its conduct in re-producing spreadsheet materials in non-native format that had already been produced in native format

Nature of Case: Employment discrimination

Electronic Data Involved: Spreadsheets

Friel v. Papa, 829 N.Y.S.2d 569 (N.Y. App. Div. 2007)

Key Insight: Appellate court reversed portion of lower court’s order that granted plaintiffs’ motion to strike defendant’s answer as sanction for spoliation of evidence based on destruction of defendant’s computer hard drive, since plaintiffs inspected the hard drive and obtained the relevant information prior to its destruction and did not demonstrate any prejudice

Nature of Case: Defamation and wrongful termination

Electronic Data Involved: Hard drive

DE Techs., Inc. v. Dell, Inc., 2007 WL 128966 (W.D. Va. Jan. 12, 2007)

Key Insight: District judge modified magistrate’s December 4, 2006 sanctions order, allowing Dell to use the 57 disputed documents at trial since it concluded that Dell had provided the documents in a way that fulfilled all of its discovery obligations and DE had not moved to compel production of the documents in a different format

Nature of Case: Patent infringement

Electronic Data Involved: Electronic documents produced in searchable database

ABN Amro Mortgage Group, Inc. v. Promised Land Mortgage LLC, 2007 WL 101812 (S.D. Ind. Jan. 8, 2007)

Key Insight: Court analyzed application of attorney/client privilege and work product protection to information entered into a database and printed in spreadsheet format, comparing database to a “file cabinet” with “drawers” and “file folders”; court ultimately ordered production of a master spreadsheet with several categories of information redacted

Nature of Case: Contract and tort claims arising from alleged mortgage fraud

Electronic Data Involved: Database, spreadsheets

Charles Schwab & Co., Inc. v. Karpiak, 2007 WL 136743 (E.D. Pa. Jan. 12, 2007)

Key Insight: Court adopted magistrate’s recommendation and issued preliminary injunction ordering defendants to return Schwab’s client and business information and to turn over to their counsel any information in electronic form (including but not limited to personal computers, lap top computers, Blackberries, Treos, Palm Pilots, mobile telephones and any other device in, or on, which data can be electronically stored), so that defense counsel could preserve the integrity of such devices and data and immediately make such devices and data available for inspection and duplication by plaintiff’s counsel and/or computer forensic consultants

Nature of Case: Breach of employment agreement

Electronic Data Involved: Trade secret information in electronic form

The Biggest Data Disaster Ever

From The Red Tape Chronicles, Posted:  Friday, November 30 at 05:15 am CT by Bob Sullivan:

"It’s being called the worst data leak of the information age.  Earlier this month, U.K. officials had to admit they’d lost hard drives containing personal information on almost half the country’s population, including nearly all families with children.  If that’s not bad enough, the databases included the worst kind of information to lose — consumer bank account numbers.

It’s a data scandal fit for tabloids.  The price tag put on the loss is already $500 million.  Prime Minister Gordon Brown had to issue a public apology, and the head of Britain’s Revenue and Customs office was forced to resign.  The U.S. audience might have missed the initial news because the story broke during the Thanksgiving holiday.  But the obvious question floating across the Pond is this:  Could something that dramatic happen in the United States?

Yes, most experts say.  And the consequences here would be even worse."

Click here to read the full article. 

Court Defers Ruling on Defense Request to Inspect Hard Drives and for Sanctions, Ordering Plaintiff to Submit Affidavit Detailing Why Certain Emails were “Unloadable” and Efforts Taken to Retrieve the Information

U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D. Fla. Nov. 26, 2007)

In this breach of contract case, plaintiff sought a protective order blocking the production of documents by a non-party in response to defendant’s subpoena.  The court found that plaintiff had not established good cause for the protective order, in part because the time frame of the requests was reasonable.  The court also noted that, because plaintiff’s 2004 emails were allegedly unavailable (discussed below), defendant had no other way to obtain some of the information.  The court thus denied the motion for protective order; it also denied the non-party’s motion to quash, which was based on general relevancy and (unsupported) undue burden arguments.

At the same time, defendant sought an order compelling plaintiff to produce the hard drives of certain employees for inspection by an independent expert, and to produce all responsive 2004 emails.  Defendant also sought various sanctions for plaintiff’s alleged failure to produce the material in accordance with the court’s prior order on the subject.

Plaintiff responded that it had produced all responsive documents in its possession.  However, it explained that, due to a computer error following a server change that occurred prior to litigation, its 2004 emails were "unloadable.”  It also claimed that it had no hard copies of any 2004 emails.  As such, plaintiff contended that it could not produce any 2004 emails.

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Plaintiffs Fail to Establish that Email in LotusNotes Format was “Not Reasonably Accessible Because of Undue Burden or Cost”

Parkdale Am., LLC v. Travelers Cas. and Sur. Co. of Am., Inc., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007)

In this case, Carolina corporations that manufacture and sell cotton yarn sought a declaratory judgment that, pursuant to an insurance contract, the defendant was obligated to defend and indemnify plaintiffs concerning claims in ten underlying antitrust lawsuits.  Plaintiffs also asserted state claims for breach of contract, bad faith denial of insurance claims, and unfair and deceptive trade practices.  The court in this opinion resolves a number of discovery disputes, one of which related to the production of email by plaintiffs.

Plaintiffs had raised an objection in their briefs to producing unidentified but admittedly non-privileged emails on the grounds of undue burden and expense ($20,000 to convert the emails into a searchable format).  However, at the hearing the parties’ counsel explained to the court that those emails were a key player’s emails which were subsequently produced at a lesser (and shared) cost.  When defense counsel argued that there was “very little useful information in those emails,” plaintiff’s counsel renewed plaintiffs’ objection as to other emails on the grounds of relevance and the burden and cost of searching them for privileged information.

The court cited Fed. R. Civ. P. 26(b)(2)(B) and 26(b)(2)(C), and found that the disputed discovery requests sought evidence that was relevant, and in some cases, “pivotal” to the issues in the case.  It stated: “In other words, absent a valid privilege or an undue burden or expense in production sufficient to override the Defendant’s right to conduct otherwise reasonable discovery, the Plaintiffs must respond fully to those discovery requests.”

Read More

Head of Rove Inquiry in Hot Seat Himself

From the Wall Street Journal, November 28, 2007, Page A6, by John R. Wilke:

"The head of the federal agency investigating Karl Rove’s White House political operation is facing allegations that he improperly deleted computer files during another probe, using a private computer-help company, Geeks on Call.

Scott Bloch runs the Office of Special Counsel, an agency charged with protecting government whistleblowers and enforcing a ban on federal employees engaging in partisan political activity.  Mr. Bloch’s agency is looking into whether Mr. Rove and other White House officials used government agencies to help re-elect Republicans in 2006.

At the same time, Mr. Bloch has himself been under investigation since 2005.  At the direction of the White House, the federal Office of Personnel Management’s inspector general is looking into claims that Mr. Bloch improperly retaliated against employees and dismissed whistleblower cases without adequate examination.

Recently, investigators learned that Mr. Bloch erased all the files on his office personal computer late last year.  They are now trying to determine whether the deletions were improper or part of a cover-up, lawyers close to the case said."

Click here to read the full article.  (Subscription may be required.)

Plaintiff Ordered to Preserve Graphic Images Stored on Cell Phone

Smith v. Cafe Asia, 246 F.R.D. 19 (D.D.C. 2007)

Plaintiff was formerly employed as a host and waiter at Café Asia, a restaurant located in Washington, D.C.  Plaintiff claimed that he was the victim of discrimination based on his sexual orientation, and that he was the subject of assault and battery in the form of unwanted touching.  Among other things, plaintiff alleged that the kitchen staff routinely harassed him, that management tolerated and encouraged the verbal and physical harassment, and that one manager had sent him an email containing pornographic images portraying homosexual acts.  The defendant restaurant responded that all of the alleged incidents were welcomed, encouraged and instigated by plaintiff.

Defendant requested that it be permitted to inspect and make copies of images stored on plaintiff’s cell phone.  Defendant alleged that the images portray plaintiff’s genitalia at various states of arousal, and graphic images of other men purported to be plaintiff’s sexual partners.  Defendant argued that the images were relevant to whether plaintiff invited a hostile work environment and whether he was subjectively offended by defendant’s alleged conduct.

Plaintiff conceded that his cell phone contained “intimate, highly personal” and “unclothed images,” but denied having willingly shared the images with his co-workers.

Magistrate Judge John M. Facciola ruled that, balancing defendant’s need for the images against plaintiff’s valid privacy concerns, plaintiff would be required to preserve the images and permit inspection by one attorney designated by defendant only so far as necessary to fully inform its discovery and trial preparation. Read More

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