Kemper Mortgage, Inc. v. Russell, 2006 WL 2319858 (S.D. Ohio Apr. 18, 2006)

Plaintiff submitted a letter request to the court regarding a litigation hold, and the court heard oral argument on the request by telephone with both parties participating. Plaintiff represented that its computer forensics expert had advised that a “litigation hold” be effected by making a mirror image of plaintiff’s corporate server, laptops, and a branch server, at a cost of roughly $4,000. Plaintiff sought the telephone conference “to discuss the Court’s wishes on the preservation of evidence through the litigation hold, and which party will bear the related costs.” Read More

Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL 1544621 (W.D. Tex. May 31, 2006)

In this patent case, Dot Hill Systems Corporation (“Dot Hill”) produced to Crossroads Systems, Inc. (“Crossroads”) an email drafted by Thomas Lavan (“Lavan”), Director of Intellectual Property for Chaparral Network Storage, Inc. (“Chaparral”), and sent to Chaparral’s outside patent counsel, Alan Davis. (During the litigation, Dot Hill acquired Chaparral, and Crossroads asserted patent infringement by Dot Hill based on Dot Hill’s original products and Chaparral’s products.) Dot Hill’s 30(b)(6) witness, Dana Kammersgard, was asked questions about the email during her deposition, but no objections were made based on attorney-client privilege. Read More

Durst v. FedEx Express, 2006 WL 1541027 (D.N.J. June 2, 2006)

Plaintiff (“Durst”) had been employed as a part-time courier by FedEx. He contended that he was required to drive vehicles with “safety issues” that suffered regular breakdowns. One day, he was unable to insert the key into the ignition of his truck. FedEx sent a replacement vehicle, but instead of finishing his route, Durst returned to the station and refused to deliver remaining packages. He based this refusal on alleged unaddressed safety concerns and prior vehicle breakdowns. Durst received a termination letter two days later. Litigation ensued, FedEx unsuccessfully moved for summary judgment, and Durst filed a motion in limine seeking an adverse inference that FedEx destroyed or failed to maintain evidence that would have been favorable to Durst and unfavorable to FedEx. Such evidence included accident reports, towing records, Vehicle Inspection Reports (regularly filled out by FedEx couriers), vehicle repair histories, and email identifying repeated problems with vehicles. Read More

Cardenas v. Dorel Juvenile Group, Inc., 2006 WL 1537394 (D. Kan. June 1, 2006)

In this product liability action involving a Touriva child safety seat, plaintiffs sought sanctions against the defendant pursuant to Rule 37 for various claimed discovery abuses. Among other things, plaintiffs argued that DJG had attempted to conceal a crucial and damaging document known as “CEA 416.” (Plaintiffs explained that “CEA” was an acronym for a “Capital Expenditure Authorization” and was a DJG form which provided a description and justification for a design modification made during the life of a product.) Plaintiffs asked the court to strike DJG’s Answer and preclude DJG from pursuing any of its affirmative defenses in this matter, which would effectively result in the entry of default judgment against DJG. Read More

Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June 5, 2006)

In this insurance coverage case, defendant had earlier moved to compel the production of documents by plaintiff. Plaintiff responded that it had taken several months to gather the voluminous documents and review them for privileged materials, and finally made available “41 large-sized boxes” of documents for inspection. By agreement of the parties, the documents were digitally imaged and then burned to CD for production. Plaintiff represented that the documents were imaged in the same order as they existed in hard copy, and were numbered in continuous order as found in the boxes. However, plaintiff did not provide any table of contents or index for the imaged materials. Read More

Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006)

In this case, plaintiffs sued for copyright infringement, contending that defendant unlawfully downloaded and distributed copyrighted materials through the use of a peer-to-peer, online media distribution system. Defendant denied the allegations and further denied giving anyone permission to use the computer to conduct the activities complained of. Discovery disputes ensued, and plaintiffs filed motions to extend the discovery deadline and to compel full and complete answers to interrogatories. Read More

Morgan v. U.S. Xpress, Inc., 2006 WL 1548029 (M.D. Ga. June 2, 2006)

This case involves a motor vehicle accident about which plaintiffs and defendant offered entirely different theories. Plaintiffs alleged that the accident occurred when a U.S. Xpress tractor-trailer pulled out from the shoulder of the road and turned sharply in front of Wes Morgan’s semi-oil tanker, forcing Mr. Morgan to veer to the right shoulder of the road to avoid hitting the truck and, in the process, lose control. Defendant alleged that the accident was a single-vehicle accident involving only Mr. Morgan, pointing to the results of a police investigation, which found no physical evidence of a second vehicle, and no eyewitnesses to the accident. Read More

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

In these two opinions, the magistrate denied motions to compel plaintiff to produce document retention notices that it had issued regarding the litigation. Plaintiff resisted on privilege grounds, and the moving parties argued that any privilege had been waived by plaintiff’s failure to list the document retention notices on its privilege log.

The court determined that the plaintiff’s document retention (or “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.”

However, since neither of the two notices were in existence at the time plaintiff’s response to the requests for production was due, the court found that plaintiff’s failure to list them on a privilege log did not waive any privilege that applied.

Ayers v. SGS Control Servs., 2006 WL 1519609 (S.D.N.Y. Apr. 3, 2006) In a previous ruling, summarized here, the court ordered defendants to produce spreadsheets containing mathematical calculations regarding the payroll and timekeeping data. See Ayers v. SGS Control Servs., 2006 WL 618786 (S.D.N.Y. Mar. 9, 2006), and Ayers v. SGS Control Servs., 2006 WL 859362 (S.D.N.Y. Apr. 3, 2006) (denying defendants’ requests for reconsideration). In addition, the court had previously ordered plaintiffs to produce their damage calculations. In order to do these calculations, however, plaintiffs needed raw payroll and timekeeping data from defendants. Read More

J.C. Associates v. Fidelity & Guar. Ins. Co., 2006 WL 1445173 (D.D.C. May 25, 2006)

In this insurance coverage dispute, plaintiff sought discovery of the 1.4 million active and inactive claim and litigation files in defendant’s possession. Although the defendant did not physically search the 1.4 million files, it conducted an electronic search of the files, using internal codes that identify the category of the claim. This search identified 454 claims, including the six claims at issue in the case. Read More