Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Appellate court found there was appearance of impropriety which warranted trial judge’s disqualification; on remand, new judge to consider, among other things, mother’s request for production of hard drive from father’s work computer
Nature of Case: Divorce proceedings
Electronic Data Involved: Hard drive
Key Insight: Where plaintiff sought a fuller production of email communications from the servers of a wide variety of DB personnel, and DB represented that it searched all pertinent email files and had no other responsive emails, court ruled: “Under these circumstances, the only avenue open to [plaintiff] on this matter is to pursue the question of the scope of e-mail use and retention through depositions.”
Nature of Case: Trademark infringement
Electronic Data Involved: Email
Key Insight: Court ordered defendant to complete a diligent search of all documents subject to its control, including electronic documents, and to produce all documents by certain date; court further ordered defendant to certify, in writing, that it had performed a diligent search, including of its electronic files, to locate documents responsive to plaintiff’s document requests
Nature of Case: False Claim Act
Electronic Data Involved: Electronic documents
Key Insight: Court ordered that, to the extent the information kept in database was not duplicative of hard copy complaints produced, defendants must produce customer dispute information (including related information dealing with investigations and results) available through defendants’ computer databases dealing with disputes by certain consumers
Nature of Case: Breach of indemnification agreement
Electronic Data Involved: Databases used to manage customer accounts
Key Insight: Court denied plaintiff’s renewed motion for sanctions where plaintiff had failed to satisfy local meet and confer requirement; parties had previously engaged in meet and confer during recess and agreed on search methodology for responsive documents and emails
Nature of Case: Trademark and copyright infringement
Electronic Data Involved: Spreadsheet; email
Key Insight: Court narrowed subpoena to defendant’s new employer, setting out “tiered discovery” process: plaintiff was to identify at least one project involving files allegedly removed from disputed laptop; new employer would then search for documents and/or files of the type described that were related to that project and produce them; if any of the produced documents and/or files were shown to be relevant or reasonably calculated to lead to the discovery of admissible evidence, then the parties would proceed to the ?second tier? of discovery and plaintiff could then request documents related to other projects; if no responsive documents could be found with respect to the first identified projects, however, plaintiff would be required to make a sufficient showing to the court as to why discovery should proceed further
Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act
Electronic Data Involved: Proprietary business and technological data
Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees
Nature of Case: Wrongful termination
Electronic Data Involved: Laptop; drafts of plaintiff’s resume
Key Insight: Court applied Zubulake factors and granted in part defendant?s motion to shift costs, holding that defendant was entitled to recover 30 percent of the costs of restoring and searching backup tapes for responsive emails of one former employee, stating: “[I]f a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data.”
Nature of Case: Gender discrimination
Electronic Data Involved: Email stored on backup tapes
Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”
Nature of Case: Copyright infringement
Electronic Data Involved: Hard drive
Key Insight: Further to its previous orders imposing $111,348 in sanctions against Krumwiede for willful and bad faith spoliation of evidence, and where Krumwiede presented no evidence of financial inability to pay sanctions amount, court ordered Krumwiede to pay sanctions within 30 days or the remainder of his pleadings would be stricken
Nature of Case: Former employee who went to work for competitor sued for back pay and reformation of employment agreement; former employer asserted counterclaims for breach of non-compete and confidentiality clauses and related claims
Electronic Data Involved: Laptop computers
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