Electronic Discovery Law – Page 458 – Legal issues, news and best practices relating to the discovery of electronically stored information.

First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993)

Dec 01 2004

Key Insight: Ex parte order permitting plaintiff and its counsel, with U.S. Marshal, to enter defendants’ business premises and inventory and impound computer records and copy and inventory business records was abuse of discretion

Nature of Case: Crash test dummy manufacturer sued competitor for unfair competition, copyright infringement, misappropriation of trade secrets and related torts

Electronic Data Involved: Computer programs and printouts

Felham Enter. (Cayman) Ltd. v. Certain Underwriters at Lloyd’s, 2004 WL 2360159 (E.D. La. Oct. 19, 2004)

Dec 01 2004

Key Insight: Where defendant did not timely object to document requests and belated privilege log was inadequate, court determined that attorney-client privilege and work product protection had been waived and ordered production

Nature of Case: Insurance coverage

Electronic Data Involved: Insurer’s computerized “Z-note” file contents related to particular claim

Farmers Ins. Co., Inc. v. Peterson, 81 P.3d 659 (Okl. 2003)

Dec 01 2004

Key Insight: Writ of prohibition issued, vacating lower court’s order requiring defendant to search all of its electronic and hard copy claim files covering three-year period; court suggested alternate approach using statistical sampling technique, but left the particulars of such sampling to parties to litigate in lower court

Nature of Case: Insurance bad faith

Electronic Data Involved: Electronic claim files covering three-year period

In re Fagnant, 2004 WL 2944126 (Bankr. D.N.H. Dec. 13, 2004

Dec 01 2004

Key Insight: Where defendant acted in good faith in printing and delivering to his counsel a copy of his computerized general ledger, but counsel failed to disclose it until the eve of trial, court denied plaintiff’s request for discovery sanction precluding introduction of general ledger at trial, but awarded monetary sanctions against defense counsel

Nature of Case: Adversary proceeding in bankruptcy court

Electronic Data Involved: Printout from computerized general ledger

Excelligence Learning Corp. v. Oriental Trading Co., 2004 WL 2452834 (N.D. Cal. June 14, 2004)

Dec 01 2004

Key Insight: Court granted defendant’s motion to compel production where defendant agreed to limit scope of email request; further, court rejected defendant’s undue burden objection to plaintiff’s discovery requests where defense counsel argued that retrieval of responsive information would be time-consuming because it involved cross-referencing many databases and backup tapes, but did not submit the information in the form of a declaration

Nature of Case: Trademark infringement, misappropriation of trade secrets and related torts

Electronic Data Involved: Email; vendor information relating to 278 products

Dziadkiewicz v. Blue Cross & Blue Shield of R.I., 2004 WL 2418308 (D.R.I. Oct. 13, 2004)

Dec 01 2004

Key Insight: Since defendant failed to timely produce database dictionary and did not produce all of its expert’s relevant email, court granted motion to compel production of expert’s email; court further granted plaintiff’s request to reconvene expert’s deposition and would allow plaintiff’s expert to review additional material produced and modify his conclusions accordingly

Nature of Case: ERISA litigation

Electronic Data Involved: Email and database dictionary

Dow Chem. Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982)

Dec 01 2004

Key Insight: District court’s refusal to enforce subpoena seeking non-party’s research data affirmed

Nature of Case: Herbicide cancellation proceeding

Electronic Data Involved: Research data regarding toxicity studies of third party

Dikeman v. Mary A. Stearns, P.C., 560 S.E.2d 115 (Ga. Ct. App. 2002)

Dec 01 2004

Key Insight: Former client’s discovery requests, including request for hard drives of lawyer’s computers that had generated documents pertaining to client, were overbroad, oppressive and annoying

Nature of Case: Fee dispute between lawyer and former client

Electronic Data Involved: Computer hard drive

Deloach v. Philip Morris Co., 206 F.R.D. 568 (M.D.N.C. 2002)

Dec 01 2004

Key Insight: Where defendant withheld computerized data and defense expert subsequently used data in rebuttal report, court allowed plaintiffs the opportunity to respond to defendants’ rebuttal expert report, and ruled that defendants would not be allowed opportunity to reply to plaintiffs’ response to the withheld information

Nature of Case: Antitrust

Electronic Data Involved: Computerized transaction data

Daewoo Elecs. Co. v. United States, 650 F. Supp. 1003 (Ct. Int’l Trade 1986)

Dec 01 2004

Key Insight: Zenith’s motion to compel granted, requiring production in usable form of SAS data sets, constituting final refined forms of data used to compute final results; court criticized government’s inordinately restrictive interpretation of its discovery obligations: “To say that the data sets into which the computer tapes were transferred are not governed by an order speaking of computer tapes is as if someone had said at the dawn of the era of typewriters that typed documents are not governed by a court order speaking of ‘writings.'”

Nature of Case: Proceeding to review Dept. of Commerce’s review of antidumping duty order regarding television sets

Electronic Data Involved: Data sets