Valdez v. Town of Brookhaven, 2007 WL 1988792 (E.D.N.Y. July 5, 2007)

In this discrimination case, the court decided a number of discovery issues, including plaintiffs’ request that the defendants be directed to send out a litigation hold to the relevant Town employees to preserve records.  Denying the request, the court provided a brief explanation:

[T]he plaintiffs request that the court direct defense counsel to send out a litigation hold to the relevant Town employees to preserve records as well as to conduct a good faith investigation into what documents (electronic or otherwise) may have already been destroyed.  The apparent basis for this request is a conversation during which defense counsel reportedly advised that the "Town has a history of terrible record keeping."  Defense counsel denies any such conversation occurred.  The law is clear that there is an obligation to preserve evidence "when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation", see Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (citing Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); Kronish v. United States, 150 F.3d 112, 126 (2d Cir. 1998)).  To the extent, however, plaintiffs seek a preservation order that request is denied.  Preservation orders are burdensome and expensive and in the absence of a clear need should not be lightly entered.  See, e.g., Treppel v. Biovail Corp., 233 F.R.D. 363, 370-71 (S.D.N.Y. 2006).

Williams v. Taser Int’l, Inc., 2007 WL 1630875 (N.D. Ga. June 4, 2007)

The court in this wrongful death case had previously held a hearing on outstanding discovery issues, and had directed each party to submit a proposed protocol to govern electronic discovery in the case.  Based on the parties’ filings, their representations during the hearing, as well as their submissions of electronic discovery protocols, the court entered this order resolving a variety of discovery disputes.

On the subject of electronic discovery, the court noted that a number of issues had arisen with respect to Taser’s search of electronic databases of internal communications.  In particular, the parties substantially disagreed about the manner in which the searches for responsive documents contained within these databases were to be performed.  The disagreement focused in large part on the timing of that production, the specific search terms to be used, and the extent to which plaintiffs would be allowed to participate in the search process.

Plaintiffs, for their part, requested that they be permitted to actively participate in the search process at the Taser facility.  Under plaintiffs’ proposal, Taser would make a computer with multiple screens available at its facilities, where plaintiffs’ counsel would appear and provide search requests to the Taser representative actually performing the database searches.  The results of each of plaintiffs’ requested searches would be immediately reviewed for privilege, and plaintiffs would then be provided access to any documents returned and to which no privilege objection was asserted.

Defendants adamantly opposed plaintiffs’ proposal, contending that plaintiffs’ counsel need not be present at Taser’s facilities, that their presence would both substantially hinder Taser’s ongoing business activities and risk the disclosure of privileged information.  Taser instead proposed that search terms be exchanged between the parties by email.  Taser would then perform the searches using the stated terms, and report the number of documents retrieved to plaintiffs, who would then have the opportunity to either accept the search or propose different search terms.  If both parties accepted a given search, Taser would then review the documents produced for privilege and produce all responsive, non-privileged documents.  If, however, the parties disputed whether a given search was acceptable, then either could apply to the court for review, and all searches would cease until the court rendered a decision. Read More

Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2007 WL 1848665 (N.D. Cal. June 27, 2007)

In this trademark litigation, Google sought terminating, evidentiary, or monetary sanctions based on the alleged failure of defendant American Blind to preserve, collect, and produce evidence.  Google’s motion was premised on two types of alleged misconduct:  First, Google contended that American Blind made inadequate efforts to preserve, collect, and produce relevant evidence.  Second, Google contended that in May of 2006, American Blind’s founder and CEO, Steve Katzman, intentionally destroyed evidence when he “voluntarily resigned” from his position and erased electronic data from certain computers.

Google served American Blind with summons and the complaint in this action seeking declaratory relief in December of 2003.  The presiding judge had previously ruled that a justiciable controversy arose between the parties no later June of 2002, when counsel for American Blind sent Google a “cease and desist” letter that portended litigation.  Thus, the court found that American Blind’s duty to preserve relevant evidence arose no later than December of 2003, and likely arose some eighteen months earlier. American Blind did not argue to the contrary.

With respect to the first basis for the motion, Google made a factual showing that: Read More

Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12, 2007)

In this case, plaintiff asked the court to enter a discovery order to "ensure the production of all electronically stored information in an acceptable format as required by law and the most recent amendments to the Federal Rules of Civil Procedure."  Plaintiff also sought to compel the re-production of ESI previously produced by defendant in hard copy form, and to compel the production of deleted documents.

Forensic Search 
Plaintiff first contended that, pursuant to the 2006 amendments to Fed. R. Civ. P. 34, it was entitled to an order that would require defendant to allow a forensic expert to search defendant’s computer systems, network servers and databases and would require defendant to provide back up tapes of certain information systems.  Plaintiff offered to pay the cost of the forensic expert and to allow defendant ten days to review the data for privilege before any production was made.  Defendant objected, arguing that the 2006 amendments required no such discovery order as a matter of course.  The court agreed with defendant, and observed:
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In re Genetically Modified Rice Litig., 2007 WL 1655757 (E.D. Mo. June 5, 2007)

This order constitutes the parties’ Agreed Order Regarding Preservation of Communications, Documents, Electronic Data, and Other Tangible Items, intended to govern the parties’ preservation efforts in these consolidated MDL proceedings.  The Agreed Order contains two parts: a lengthy definitional section and a section setting out specific preservation obligations.  The latter section provides that the preservation obligations set forth in the Order apply to currently-existing evidence within the parties’ possession, custody, or control, as well as evidence "generated, produced, or otherwise created in the future during the pendency of this Action until an agreement can be reached among the Parties regarding a cutoff date.”  It further provides:  “Notwithstanding any other provision of this Order, persons may generate business documents without preserving dictation, drafts, interim versions or other temporary compilations of information if such documents would not have been preserved in the ordinary course of business.” 

The Agreed Order further provides:

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Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007)

In this case, disabled plaintiffs claimed that WMATA failed to provide adequate paratransit services through the MetroAccess program and that the service provided was materially inferior to the services available to people without disabilities.  Discovery was heavily litigated, and Magistrate Judge John M. Facciola addressed several discovery motions in this opinion, one of which related to the production of email from backup tapes.

Specifically, plaintiffs sought an order requiring WMATA to produce backup tapes of certain electronic documents written and received since the filing of the lawsuit.  Plaintiffs argued that WMATA had failed to properly instruct employees to retain potentially responsive electronic documents and therefore should pay to create the backup tapes.  “Remarkably, although the complaint in this case was filed on March 25, 2004, WMATA acknowledges it did nothing to stop its email system from obliterating all emails after sixty days until, at the earliest, June of 2006.”  WMATA presented testimony that its email system was programmed with an automatic deletion feature that deleted any email after it had been in existence for sixty days, without regard to whether the email was unread, in a folder that the sender or recipient has created, or in the user’s "Sent" or "Trash" folders.  Further, while the user could defeat the feature by archiving the email, i.e., placing it in a location of the user’s choosing in an encrypted format, the majority of WMATA employees apparently did not do this.  “As a result, with the exception of three individuals, there has been a universal purging of all possibly relevant and discoverable emails every sixty days at least since the complaint was filed three years ago.” Read More