AutoNation, Inc. v. Hatfield, 2006 WL 60547 (Fla. Cir. Ct. Jan. 4, 2006)

In connection with its order granting temporary injunctive relief based upon the defendant’s alleged theft of trade secrets, the court ordered the forensic inspection of a personal computer: Read More

Quinby v. WestLB AG, 2006 WL 59521 (S.D.N.Y. Jan. 11, 2006) In its second opinion addressing e-discovery issues (the first is summarized here), the court quashed subpoenas issued by the defendant to the providers of plaintiff’s personal email accounts. The subpoenas sought all e-mails sent to or received by plaintiff’s personal e-mail account during the period from October 2002 throughout July 2004, other than e-mails between plaintiff and her current and former counsel. Read More

DaimlerChrysler Motors v. Bill Davis Racing, Inc., 2005 WL 3502172 (E.D. Mich. Dec. 22, 2005)

Plaintiff sought sanctions for defendant’s failure to preserve evidence, and the matter was referred to a magistrate for hearing and determination. Defendant asserted that email messages were lost by reason of a preexisting feature of its computer system. Defendant explained that its computer system was set up to delete both internal and external email messages automatically, unless affirmative efforts were taken to preserve them. It further showed that such messages, once deleted, were not subject to retrieval by the defendant or by its computer support company. Read More

Hamilton v. Signature Flight Support Corp., 2005 WL 3481423 (N.D. Cal. Dec. 20, 2005)

In this employment discrimination case, the court decided that sanctions were not warranted for the defendant’s failure to preserve a surveillance video that captured an altercation between one of the plaintiffs and a customer. Although defendant preserved and produced what it claimed to be the only video of the incident, there was a gap in the middle of the tape, and the recording ended prematurely, as the incident appears to continue and the recording abruptly ends. Read More

Wood v. Sempra Energy Trading Corp., 2005 WL 3465845 (D. Conn. Dec. 9, 2005)

In this wrongful termination case, the court denied plaintiff’s motion to preclude certain evidence or for the granting of an adverse inference against defendant. The court concluded that the timing of plaintiff’s motion, alone, provided sufficient reason to deny it. Discovery had closed in May 2004, and the court noted that plaintiff had not previously complained of any deficiencies in the defendant’s responses to discovery. It stated: “While a motion for an adverse inference can be filed just in advance of the trial itself, it should be preceded by efforts to compel compliance with discovery requests, and even motions for contempt.” The court noted that, while there had been motions to compel, “no follow-up motions” were filed by plaintiff. Read More

Quinby v. WestLB AG, 2005 WL 3453908 (S.D.N.Y. Dec. 15, 2005)

In this gender discrimination suit, plaintiff sought sanctions against defendant and its counsel for their conduct in connection with the production of email stored on backup tapes. Earlier, the parties had sought the court’s intervention to resolve the scope of electronic discovery. At that time, the court ordered defendant to provide an affidavit addressing the technical issues raised by plaintiff’s discovery requests for emails and other electronic communications. Specifically, the court had directed the parties’ attention to Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), and further directed that the affidavits address the devices used by defendant to store the data and the seven cost-shifting factors identified in the opinion. The court had further ordered defendant to produce for deposition a witness who could discuss the relevant e-discovery issues, and to restore, as a sample, the backup tape or tapes that contained emails from a particular time frame into a readable, searchable format. Read More

In re Priceline.com Inc. Sec. Litig., 233 F.R.D. 88 (D. Conn. 2005)

In this securities class action, plaintiffs brought a motion to compel the production of electronically stored information. Although the defendants did not object to producing responsive information, there was substantial disagreement between the parties regarding how responsive information should be produced. The court’s decision sets out detailed e-discovery “directives” for the parties to follow. In one of the directives, the court rejects plaintiffs’ request that material be produced in native format, and orders defendants to produce responsive information contained in stored data files to plaintiffs in TIFF or PDF form with Bates numbering and appropriate confidentiality designations, and to produce searchable metadata databases, and also to maintain the original data itself in native format for the duration of the litigation. The court also states that “[c]ost-shifting shall be applied for in the method set forth in the proposed revisions to Rule 26(b)(2) and the Committee Note attendant thereto.”

de Espana v. Am. Bureau of Shipping, 2005 WL 3455782 (S.D.N.Y. Dec. 14, 2005)

In this case arising out of the casualty and sinking of a vessel at sea, the defendant (“ABS”) inadvertently produced email communications allegedly protected by the attorney client privilege. Read More

Washington v. Thurgood Marshall Academy, 232 F.R.D. 6 (D.D.C. 2005)

In this wrongful discharge case, plaintiff moved to compel the defendant to produce additional emails between defendant and plaintiff and others concerning plaintiff’s claims. In support of her argument that the defendant’s responses were deficient, she stated that she and other employees of defendant “‘e-mailed each other constantly,'” that she had produced over 15 such emails in discovery, and that defendant had produced only five such emails. Plaintiff’s argument was essentially that there “must be” more emails. Magistrate Judge Facciola denied the motion, concluding: “[P]laintiff’s speculation that more e-mails exist does not entitle her to more and, therefore, the court will not compel defendant to produce more emails.” 232 F.R.D. at 11.