Electronic Discovery Law – Page 442 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Bell v. Woodward Governor Co., 2004 WL 3121301 (N.D. Ill. Dec. 20, 2004)

Dec 01 2004

Key Insight: Where defendant represented that it had not located any other responsive documents which were not previously produced, court ordered defendant, with seven days of receipt of the order, to: (1) confirm that a reasonable search for the subject documents was conducted and indicate what the manner of the search was, (2) produce responsive documents, (3) confirm if no responsive documents exist, and (4) confirm instances where the documents were destroyed, indicating by whom and when, if possible

Nature of Case: Class action for race discrimination

Electronic Data Involved: Email and other documents

In re Nat’l Century Fin. Enters., Inc. Fin. Inv. Litig., 347 F. Supp. 2d 538 (S.D. Ohio 2004)

Dec 01 2004

Key Insight: Court granted plaintiffs’ motion for leave to issue document preservation subpoena to Chapter 11 debtor, finding it was necessary to preserve the documents held by debtor since debtor would likely be dissolved and its documents would be destroyed, and such destruction would cause actual prejudice to plaintiffs in prosecuting their class action

Nature of Case: Securities class action by investors claiming that defendants had looted assets of Chapter 11 debtor

Electronic Data Involved: Information held in electronic form

Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2988482 (E.D. La. Dec. 9, 2004)

Dec 01 2004

Key Insight: Where certain information was not available through defendant’s computer system and cost of recovering information through physical search could exceed damages claimed, court ruled that “prudent course” would be to place cost of physical search on plaintiff and instructed parties to develop a protocol for manual inspection of records at ten (of 3,000) stores; court further ordered defendant to provide available computer records

Nature of Case: Drug company claimed drug store chain improperly substituted one drug for another

Electronic Data Involved: Computer databases

Peter Rosenbaum Photography Corp. v. Otto Doosan Mail Order Ltd., 2004 WL 2973822 (N.D. Ill. Nov. 30, 2004)

Dec 01 2004

Key Insight: Court ordered nonparty to comply with subpoenas seeking electronic records, imposing monetary sanctions for nonparty’s unsupported argument that bankruptcy court’s automatic stay prevented it from having to comply with the subpoenas and ordering nonparty and plaintiff to meet and confer on means for compliance

Nature of Case: Copyright infringement

Electronic Data Involved: Electronic records, including email

Zonaras v. Gen. Motors Corp., 1996 WL 1671236 (S.D. Ohio Oct. 17, 1996)

Dec 01 2004

Key Insight: Defendant ordered to produce crash test data, but plaintiff to share in cost

Nature of Case: Product liability

Electronic Data Involved: Crash test data

Zhou v. Pittsburgh State Univ., 2003 WL 1905988 (D. Kan. Feb. 5, 2003)

Dec 01 2004

Key Insight: Motion to compel production of computer-generated salary data granted; court further ordered parties to preserve all relevant evidence including all data compilations, computerized data and other electronically-recorded information

Nature of Case: Employment discrimination

Electronic Data Involved: Computerized payroll records

Youle v. Ryan, 811 N.E.2d 1281 (Ill. App. Ct. 2004)

Dec 01 2004

Key Insight: Order compelling defendant surgeon to produce his surgical database, to include information related to all the cholecystectomy procedures defendant had ever performed (with the patient names redacted) was abuse of discretion; matter remanded with directions that the court examine the database contents in camera to determine relevance and privilege issues

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical database maintained by defendant surgeon

York v. Hartford Underwriters Ins. Co., 2002 WL 31465306 (N.D. Okla. Nov. 4, 2002)

Dec 01 2004

Key Insight: Defendant required to produce documents regarding use of software program and designate Rule 30(b)(6) witness to testify about defendant’s use of software program; defendant allowed to submit protective order “to safeguard divulgence of such information to third parties”

Nature of Case: Insurance bad faith

Electronic Data Involved: Colossus computer software program used by insurance industry to evaluate claims

YCA, LLC v. Berry, 2004 WL 1093385 (N.D. Ill May 7, 2004)

Dec 01 2004

Key Insight: Court denied defendant’s motion to strike the testimony of plaintiff’s computer expert (who recovered “plethora” of deleted documents from defendant’s old YCA computer) since any delay in disclosing the expert and the recovered material was justified given defendant’s failure to disclose that his old computer might contain relevant evidence

Nature of Case: Breach of nondisclosure agreement, tortious interference

Electronic Data Involved: Deleted documents, computer hard drive

Xpedior Creditor Trust v. Credit Suisse First Boston (USA), Inc., 2003 WL 22283835 (S.D.N.Y. Oct. 2, 2003)

Dec 01 2004

Key Insight: Motion for protective order requiring plaintiff to share the cost of restoring computer files denied; Zubulake judge applied Zubulake factors and concluded that cost-shifting was not appropriate

Nature of Case: Breach of contract class action

Electronic Data Involved: Computer files housed on decommissioned systems