Electronic Discovery Law – Page 396 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Washburn v. Lavoie, 437 F.3d 84 (D.C. Cir. 2006)

Dec 01 2006

Key Insight: Magistrate did not err in refusing to order defendants to produce all emails that mentioned plaintiff or plaintiff’s lawsuit, where magistrate did order defendants to produce the emails for in camera inspection and magistrate’s personal review showed that nearly half were devoid of anything bearing upon the litigation and the other half dealt with irrelevant issues such as the costs of litigation, retention of counsel and the need to answer interrogatories

Nature of Case: Defamation

Electronic Data Involved: Email

Madden v. Wyeth, 2006 WL 568015 (N.D. Tex. Mar. 7, 2006)

Dec 01 2006

Key Insight: Court awarded plaintiff $47,970 in sanctions representing attorney’s fees and expenses reasonably incurred in bringing motion to compel discovery of Wyeth’s adverse event database and production of prior versions of certain reports and source documents; court had earlier granted plaintiff and her expert supervised access to defendant’s database

Nature of Case: Drug products liability

Electronic Data Involved: Database and source documents for certain reports

Kiliszek v. Nelson, Watson & Assocs., LLC, 2006 WL 335788 (M.D. Pa. Feb. 14, 2006)

Dec 01 2006

Key Insight: Court granted plaintiffs’ Rule 56(f) motion to delay adjudication of summary judgment motion to allow further discovery where collection agency did not retain hard copies of collection letters but instead noted the nature and types of letters on a debtor overview report and saved copies of form letters, and where dispute existed over whether an exhibit submitted in support of defendant’s motion was an accurate reproduction of defendant’s initial communication to plaintiff or a fabrication

Nature of Case: Debtor sued collection agency under Fair Debt Collection Practices Act

Electronic Data Involved: Computer record of collection activity and form letters

Chavannes v. Protective Life Ins. Co., 232 F.R.D. 698 (S.D. Fla. 2006)

Dec 01 2006

Key Insight: Where plaintiff had originally asserted work product protection regarding videotape recording of insured’s funeral, but failed to adequately explain the circumstances which led to his statements that the video existed or the circumstances surrounding his claimed discovery that no such video existed, court ordered plaintiff to produce video or explain in detail any reasons for non-production

Nature of Case: Beneficiary sued insurer to recover death benefit

Electronic Data Involved: Videotape recording of funeral

Liebel-Flarsheim Co. v. Medrad Inc., 2006 WL 335846 (S.D. Ohio Feb. 14, 2006)

Dec 01 2006

Key Insight: Although court decided it could not hold either party in contempt, it advised that parties? exchange of emails and written correspondence did not satisfy meet and confer requirement contained in court’s earlier Case Management Order; court understood the phrase to mean “a conference in which opposing parties actually talk to one another”

Nature of Case: Patent infringement

Electronic Data Involved: Email

Marshall & Swift, L.P. v. Crawford & Co., 2006 WL 319262 (N.D. Ga. Feb. 9, 2006)

Dec 01 2006

Key Insight: Court granted defendant’s motion for reconsideration and clarification of order extending discovery cut off, confirming that defendant would be allowed to engage in limited discovery in order to rebut plaintiff’s evidence of software usage documented in plaintiff’s spreadsheets, and to explore the source data for entries on the spreadsheets

Nature of Case: Plaintiff sought damages stemming from defendant’s use of plaintiff’s claims software

Electronic Data Involved: Spreadsheet

Clever View Invs., Ltd. v. Oshatz, 2006 WL 305467 (S.D.N.Y. Feb. 8, 2006)

Dec 01 2006

Key Insight: Magistrate ordered parties to share cost of $15,182 hard copy production (responding party to pay 60 percent and requesting party to pay 40 percent) where parties failed to seek assistance from the court prior to the copying, and where some of the reproduction was unnecessary since much of the information was available through other means, including on CD

Nature of Case: Trademark infringement

Electronic Data Involved: CD containing purchase orders

Super Group Packaging & Distrib. Corp. v. Smurfit Stone Container Corp., 2006 WL 274779 (W.D. Wis. Jan. 27, 2006)

Dec 01 2006

Key Insight: In court’s decision ruling on parties’ respective post-trial motions, court affirmed its prior determination that defendants did not use reasonable efforts to locate responsive emails or provide them to plaintiff, and granted plaintiff’s motion to award $11,310 in sanctions representing plaintiff’s costs and fees expended on the discovery dispute

Nature of Case: Breach of contract, unjust enrichment and related torts

Electronic Data Involved: Email

Braun v. Agri-Systems, 2006 WL 278592 (E.D. Cal. Feb. 2, 2006)

Dec 01 2006

Key Insight: Where plaintiff produced digitized documents from defendant’s inspection of nine boxes of hard copy documents (some 10,000 pages) per the parties’ agreement, court denied defendant’s motion to compel plaintiff to provide an index of such digitized documents, finding that Rule 34 does not require a party to create an index

Nature of Case: Breach of contract, negligence and breach of confidentiality agreement

Electronic Data Involved: Index of digital documents

Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Preservation order not warranted under three-part balancing test, but defendants would be required to treat Document Retention Questionnaire and supplemental letter inquiries regarding electronic document maintenance and retention as interrogatories and provide substantive responses since plaintiff provided ample basis and deposition was no substitute; magistrate also ordered production of electronic records in native file format since defendant had not provided any substantive basis for objection

Nature of Case: Defamation, tortious interference with prospective economic advantage and civil conspiracy

Electronic Data Involved: Email and other electronic records