Electronic Discovery Law – Page 394 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Global Compliance, Inc. v. Am. Labor Law Co., 2006 WL 1314171 (Cal. Ct. App. May 15, 2006) (Unpublished)

Dec 01 2006

Key Insight: Appellate court affirmed discovery sanctions imposed on two defendants for resisting production of electronic documents on CD, noting: “A CD is simply a copy of the electronic data on the computer. Just as photocopying is proper for copying a document in paper form, downloading computer files onto a CD is an appropriate means for copying the electronic data on a computer’s hard drive.”

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: CD-ROMs containing electronic documents

Nichani v. United Tech. Corp., 2006 WL 1102761 (D. Conn. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel production of all documents prepared by four trial witnesses regarding accident investigation, as well as all email between or among them regarding the same matter, where discovery was closed and plaintiff had long known that four witnesses had potentially relevant information and plaintiff never followed up on general production requests nor sought discovery from witnesses directly; court further denied plaintiff’s alternative motion in limine precluding testimony of four individuals

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Employers Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., 2006 WL 1120632 (E.D.N.Y. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court found that the computerized claim file was clearly relevant, irrespective of whether plaintiffs intended to use the documents or not in the litigation, and ordered plaintiffs to produce the complete claim file, including hard copies and electronic documents, to the extent such documents were not privileged or prepared for the sole purpose of “probable” or “imminent” litigation

Nature of Case: Insurance coverage

Electronic Data Involved: Electronic claim file

Virgin Records Am., Inc. v. Does 1-35, 2006 WL 1028956 (D.D.C. Apr. 18, 2006)

Dec 01 2006

Key Insight: Court denied without prejudice Doe defendant’s motion to quash subpoena issued to defendant’s ISP which argued that court lacked personal jurisdiction over defendant, since consideration of personal jurisdiction was premature and plaintiffs had made prima facie showing of personal jurisdiction over defendant

Nature of Case: Record companies brought infringement action arising out of internet file sharing of digital sound recordings

Electronic Data Involved: IP logs maintained by Internet Service Provider

Smoliak v. Greyhound Lines Inc., 2006 WL 1029643 (N.D. Fla. Apr. 19, 2006)

Dec 01 2006

Key Insight: Magistrate issued Certification of Facts for a Finding of Contempt relating to conduct of non-party Brett Cormier, a relative and employer of plaintiff who had consistently failed to comply with discovery orders or produce salary and employment records; court had previously stated: “The Court is still reluctant to order an inspection of Cormier’s computer, at his expense, to obtain this information since it seems an extreme, expensive, and unnecessarily invasive process to obtain what should be relatively easy information about Plaintiff’s income. However, Cormier must be more cooperative in producing the limited information requested of him or the Court may be left with no other option. . . . Work history and salary information is simple, straightforward information that every reputable business maintains in a variety of easily retrievable formats, and the Court simply does not accept the representations heretofore made for why Brett Cormier cannot locate this information. This issue is getting tiresome and has occupied far too much of this Court’s time and energy.”

Nature of Case: Personal injury

Electronic Data Involved: Salary and employment information

Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 1042359 (D. Idaho Apr. 18, 2006)

Dec 01 2006

Key Insight: Court denied parties’ cross-motions for sanctions based upon spoliation; deletion of software files was unauthorized act by an employee of plaintiff 14 months before case was filed and litigation was not yet reasonably foreseeable

Nature of Case: Contract breach and fraud involving leased software

Electronic Data Involved: Software files on computer hard drive

Hardeman v. Amtrak/Caltrain R.R., 2006 WL 997378 (N.D. Cal. Apr. 17, 2006)

Dec 01 2006

Key Insight: Court granted plaintiff?s motion to compel responses to certain interrogatories, finding that defendant?s vague contention that interrogatories were burdensome and oppressive was unconvincing given its computerized database: “Without further evidence to the contrary, the Court believes that the alleged difficulty of distilling the requested information from the computerized database is overblown.”

Nature of Case: Race discrimination

Electronic Data Involved: Information contained in database

In re Benun, 339 B.R. 115 (Bankr. D.N.J. 2006)

Dec 01 2006

Key Insight: Where trustee, in a practical attempt to maximize assets and minimize expenses, attempted to reach blanket accord with patent holder’s counsel that document inspection would not serve as a waiver of the attorney-client privilege, disclosure of privileged document was inadvertent and did not constitute waiver; court denied patent holder’s motion to depose attorney who had represented both debtor and his corporation in infringement action and compel production of certain documents from attorney’s files

Nature of Case: Lengthy adversary proceeding brought by party suing debtor for patent infringement

Electronic Data Involved: Hard copy documents and “massive hard drive” assembled by bankruptcy trustee for safekeeping

United States ex rel. Fago v. M & T Mortgage Corp., 235 F.R.D. 11 (D.D.C. 2006)

Dec 01 2006

Key Insight: Granting in part and denying in part plaintiff’s motion to compel, court ordered defendant to submit a brief showing cause why, if it so contends, it is not capable of pulling names of persons who audited each of the 108 loans from its electronic archives and, if it is capable of so doing, why, if it so contends, the burden of pulling such information would be prohibitive

Nature of Case: Former employee alleged that her former employer violated False Claims Act

Electronic Data Involved: Electronic data and email

MarketRx, Inc. v. Turner, 2006 WL 851930 (N.J. Super. Ct. Ch. Div. Mar. 31, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court denied motion to quash as overbroad plaintiff?s subpoena to current employer of defendant which sought, among other things: documents and information describing any type of work that defendant performed, including solicitations and proposals, all documents and communications (including emails) he sent or received, and every computer or electronic equipment and he touched, including all backups, as well as extensive information about current employer’s practices and policies regarding document retention and computer backup; court further granted motion to compel defendant to produce similar information; parties to observe confidentiality order

Nature of Case: Action by employer against former employee based upon non-competition agreement

Electronic Data Involved: Computer and electronic equipment “touched” by former employee; email