Electronic Discovery Law – Page 393 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1520227 (S.D.N.Y. June 1, 2006) and 2006 WL 1295409 (S.D.N.Y. May 10, 2006)

Dec 01 2006

Key Insight: Magistrate ruled that, although litigation hold notices were relevant (“Like a party’s destruction of relevant documents, if plaintiff’s document retention notices are patently deficient or inadequate in some other respect, they might support a negative inference concerning the merits of plaintiff’s claims.?), they were privileged and not subject to production; plaintiff’s failure to list them in privilege log did not effect waiver because notices were not in existence at the time plaintiff?s response to the requests for production was due

Nature of Case: Acquiring corporation sued acquired corporation’s officers, directors, and independent auditor for securities fraud and other torts

Electronic Data Involved: Litigation hold notices issued by plaintiff

Ayers v. SGS Control Servs., 2006 WL 859362 (S.D.N.Y. Apr. 3, 2006)

Dec 01 2006

Key Insight: Ruling on defendants’ request for reconsideration and after viewing spreadsheets in camera, magistrate ordered defendants to file sworn affirmation and memorandum of law identifying with specificity the allegedly privileged information they contended was in spreadsheets; court further ordered that the contested records be redacted and produced to plaintiffs

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Spreadsheets containing payroll and timekeeping data

O’Grady v. Superior Court, 44 Cal.Rptr.3d 72 (Cal. Ct. App. 2006)

Dec 01 2006

Key Insight: Internet publishers successfully petitioned California appellate court for writ of certiorari directing that subpoenas issued by Apple Computer, Inc. be quashed; trial court erred in denying motion for protective order because, among other reasons, subpoena to email service provider could not be enforced consistent with the plain terms of the federal Stored Communications Act

Nature of Case: Underlying suit involved misappropriation of trade secrets and related claims

Electronic Data Involved: Email containing information regarding sources of trade secret information posted on internet

MBNA Am. Bank, N.A. v. Cioe & Wagenblast, P.C., 2006 WL 1408402 (N.D. Ind. May 19, 2006)

Dec 01 2006

Key Insight: Court denied motion to reconsider prior discovery ruling that MBNA was not entitled to production of responsive correspondence on diskette, stating that MBNA had remedies under the FRCP if defendants failed to produce legible paper copies as ordered in the prior ruling; court also flatly rejected any attempt by MBNA to obtain discovery through inspection of defendants’ computer hard drives

Nature of Case: Bank alleged firm had conducted “sham” arbitrations with bank’s cardholders

Electronic Data Involved: Word processing files

New World Sys. Corp. v. Jones, 2006 WL 1234901 (E.D. Mich. May 5, 2006)

Dec 01 2006

Key Insight: Court set hearing date for plaintiff’s motion for expedited discovery and granted in part and denied in part defendants’ motion for expedited discovery; plaintiff agreed to allow defense counsel access to laptop computer that individual defendant possessed while in the employ of plaintiff, for the purpose of making a mirror image of the hard drive for examination by a computer forensics expert hired by defendant; court allowed defense counsel 14 days after the hard drive was “mirrored” to conduct expedited discovery subject to confidentiality order agreed to by parties

Nature of Case: Misappropriation of trade secrets, violation of non-compete

Electronic Data Involved: Laptop computer

B & G Crane Serv., L.L.C. v. Duvic, 2006 WL 1194775 (La. Ct. App. May 5, 2006)

Dec 01 2006

Key Insight: Even lacking direct evidence that defendants continued to possess plaintiff?s computer disks and information (which had been seized by the Attorney General in related criminal investigation), trial court erred in denying preliminary injunction given evidence of defendants? knowing and willing participation in criminal, unethical and unscrupulous acts against plaintiff and possibility that information could have been downloaded to other computers, or printed, or handwritten and kept anywhere; trial court’s credibility determination in favor of defendants was abuse of discretion under the circumstances

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: CDs and computer disks

Pure-Flo MPC, LLC v. Bio Fab Techs., Inc., 2006 WL 1389115 (E.D. Wis. May 12, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion for accelerated discovery and immediate inspection and copying of defendants’ computers by computer forensic specialist designated by plaintiff, since plaintiff had not yet filed its preliminary injunction motion: ?The Court will not accelerate and expand discovery beyond the parameters annunciated in the Federal Rules of Civil Procedure so as to help the parties prepare for an evidentiary hearing that may never take place.?

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Email, confidential business information

Orbit Elecs., Inc. v. Helm Instrument Co., 2006 WL 1281038 (Ohio Ct. App. May 11, 2006)

Dec 01 2006

Key Insight: No abuse of discretion to deny defendant’s motion to compel production of complete copy of plaintiff’s QuickBooks system, where request was made on first day of jury trial and could have come before, plaintiff had already provided a considerable amount of documents to defendant in discovery, and defendant was unable to show that court acted arbitrarily in denying its motion or that information sought would have done anything to bolster its case

Nature of Case: Breach of contract, unjust enrichment, breach of loyalty and other claims

Electronic Data Involved: QuickBooks data

UMG Recordings, Inc. v. Does 1-4, 2006 WL 1343597 (N.D. Cal. Mar. 6, 2006)

Dec 01 2006

Key Insight: Finding good cause and no First Amendment prohibition, court granted plaintiffs? motion for leave to take immediate discovery and serve Rule 45 subpoena upon ISP to obtain names and contact information for Doe Defendants; ISP to serve copy of subpoena and court?s order upon relevant subscribers and subscribers would have 15 days to file any objections; if no objections filed, ISP would have 10 days to produce each subscriber’s name, address, telephone number, email address, and Media Access Control (?MAC?) addresses

Nature of Case: Copyright infringement

Electronic Data Involved: Names and contact information for ISP subscribers

Gavrilovic v. Worldwide Language Res., Inc., 2006 WL 1342839 (D.N.H. Apr. 18, 2006)

Dec 01 2006

Key Insight: Magistrate denied defendant’s motion for contempt order under Rule 45(e) for non-party’s alleged failure to comply with subpoena and court order, where non-party had produced roughly 3,500 pages of responsive documents, and reason for non-production of four particular emails (given to defendant by ex-employee of non-party) was because non-party did not have possession of and could not produce them since the computer and server that once contained them were no longer available to non-party

Nature of Case: Sex discrimination/harassment

Electronic Data Involved: Email