Electronic Discovery Law – Page 439 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Plaintiff Ordered to Produce Computer-readable Tape Previously Produced in Hard Copy Form

Dec 15 2004

Nat’l Union Elec. Corp. v. Matsushita Elec. Ind. Co., 494 F.Supp. 1257 (E.D. Pa. 1980)

Defendant moved to require plaintiff’s computer experts to create a computer-readable computer tape containing sales data that had been produced in answers to interrogatories. Although the defendant could themselves create the tape, it would require two months and “many thousands of dollars.” 494 F.Supp. at 1258. Read More

Demanding Party May be Liable for Data Translation Costs

Dec 07 2004

The Recorder
December 6, 2004

Litigants who demand expensive electronic data discovery have to pay for it, the Sixth District Court of Appeal ruled Friday. Noting that the issue is “bound to arise with increasing frequency,” the appellate court reversed a trial court decision that had compelled Toshiba America Electronic Components Inc. to produce data at an estimated cost of $1.5 million to $1.9 million. Click here to continue reading [subscription required.]

Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982)

Dec 01 2004

Key Insight: Court did not abuse discretion in denying request for computer tapes where requesting party already possessed all information from tapes on wage cards and were not deprived of any data

Electronic Data Involved: Computer tapes containing wage information

Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2358106 (E.D. La. Oct. 13, 2004)

Dec 01 2004

Key Insight: Court ruled that plaintiff should determine, either informally or during a corporate deposition of defendant, what information responsive to interrogatory could be retrieved from defendant?s computer system and what could only be retrieved manually; to the extent the information could only be retrieved manually, parties were ordered to attempt to agree on a sampling process

Electronic Data Involved: Computer databases

Network Computing Servs. Corp. v. Cisco Systems, Inc., 223 F.R.D. 392 (D.S.C. 2004)

Dec 01 2004

Key Insight: Concluding that plaintiff’s discovery abuse warranted sanctions, district court ruled that appropriate sanction would be to inform the jury about plaintiff’s misconduct, since monetary sanctions previously imposed had not deterred further misconduct and extreme sanction of dismissal was not warranted by the facts

Electronic Data Involved: Breach of distributorship agreement, fraud, unfair trade practices and related torts

McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

Dec 01 2004

Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice

Electronic Data Involved: Email and hard copy documents

Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)

Dec 01 2004

Key Insight: Adopting Zubulake and McPeek approaches, court ordered defendant to restore a sampling of five backup tapes selected by the plaintiff; parties would thereafter be required to make additional submissions addressing whether the burden or expense of satisfying the entire request was proportionate to the likely benefit

Electronic Data Involved: Email stored on backup tapes

United States v. First Data, 287 F. Supp. 2d 69 (D.D.C. 2003)

Dec 01 2004

Key Insight: Scheduling and case management order provides, inter alia, that document requests shall be responded to and documents produced within ten days after service, and that parties will produce documents in either hard copy form, or, in the case of electronic documents, in the native electronic format (or a mutually agreeable format)

U.S. v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000)

Dec 01 2004

Key Insight: District court did not abuse its discretion in ruling that an email was adequately authenticated by, among other things, the presence of defendant?s email address and the context and content of the email and was ?within its discretion? to deny hearsay objections to the introduction of the email because it was both an admission by a party AND was not hearsay in the first place where it was admitted to show the correspondents?? ?relationship and custom of communicating by e-mail.?

Nature of Case: Fraud, false statements to a federal agency, and obstruction of a federal investigation

Electronic Data Involved: Email

Edward D. Ioli Trust v. Avigilon Corp., No. 2:10-cv-605-JRG, 2012 WL 5830711 (E.D. Tex)

Dec 01 2004

Key Insight: Court found that local Patent Rule 3-4(a) requires production of source code and granted Plaintiff?s motion to compel

Nature of Case: Patent infringement

Electronic Data Involved: Source Code