Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it
Nature of Case: Drug products liability
Electronic Data Involved: Discoverable information in paper or electronic format
Key Insight: Court denied plaintiff’s request “to go into Ford’s databases and look for any relevant information that might be there,” finding the request for production to be overbroad and unduly burdensome
Nature of Case: Product liability
Electronic Data Involved: Databases
Key Insight: Trial court’s order requiring witness to bring with her a computer or have access at the time of her deposition to a computer capable of logging onto the database and capable of searching, sorting and printing the data on the computer as requested by plaintiff’s counsel in the deposition was overbroad and vacated; however, witness would be required to testify about database since defendant had failed to establish that database was a trade secret
Nature of Case: Personal injury from falling merchandise
Electronic Data Involved: Database re accidents and injuries occurring at Lowe’s stores
Key Insight: Court denied government’s motion to compel production of opposing party’s rebuttal expert’s proprietary database since rebuttal expert report complied with Fed. R. Civ. P. 26(a)(2)(B) and no further disclosures were warranted
Nature of Case: Taxpayer petition for readjustment
Electronic Data Involved: Proprietary database maintained by taxpayer’s rebuttal expert
Key Insight: Trial court erred in not dismissing defendants’ counterclaim and third party complaint as sanction for spoliation of evidence — contrary to court’s orders, defendants purged databases and produced backup tapes that were compromised and unusable
Nature of Case: Plaintiff sought declaratory judgment that it was not in default of license agreement
Electronic Data Involved: Computer databases and backup tapes
Key Insight: After defendant accounting firm produced only 25 pages of email from one custodian plus 14 emails from other employees, and plaintiffs voiced suspicions that production was incomplete, court directed defendant to fax to plaintiffs a written explanation of all the steps taken to find responsive emails; as to any further steps, court directed parties to read Magistrate Judge Francis’ opinion in Rowe Entertainment, then meet and confer re eight Rowe factors
Nature of Case: Securities litigation
Electronic Data Involved: Email
Key Insight: Noting differences between federal law and New York law regarding cost-shifting in discovery, court stated it did not have sufficient information about the costs associated with the requested discovery, but concluded that until plaintiffs indicated a willingness to pay for the requested electronic discovery (whatever its cost), court would not order its production
Nature of Case: Claims based on breach of contract and for an accounting
Electronic Data Involved: Computer data
Key Insight: Court granted motion for monetary sanctions against defendant for violating TRO by failing to return proprietary information and data to plaintiff, but reserved judgment on amount of award pending further proceedings
Nature of Case: Employer sued former employee for misappropriation of trade secrets and related torts
Electronic Data Involved: Database containing sales and customer information, email, laptop, zip disk
Key Insight: Finding that the production of privileged email was not inadvertent, court held that accounting firm waived attorney-client privilege as to disclosed email, and as to 15 other emails on same subject matter
Nature of Case: Securities class action
Electronic Data Involved: Email
Key Insight: Where plaintiff sought “any document which would evidence the true date when [a particular] entry was actually entered into the computer system,” court ruled that if plaintiff wishes to retain a forensic computer expert at her own expense, she may seek an order that defendant permit the expert to inspect the computer system
Nature of Case: Wrongful termination
Electronic Data Involved: Date of particular data entry in computer system
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