Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Defendants could not assert the privilege against self-incrimination to resist production of corporate records; court ordered individual defendants to produce all the business records on their computers
Nature of Case: Cable TV provider sued defendants alleging a scheme to illegally manufacture and sell cable TV descramblers
Electronic Data Involved: Computerized sales data
Key Insight: Court granted plaintiff’s ex parte motion for expedited discovery and for preservation order; defendant ordered not to destroy or remove any books and records, including those stored electronically
Nature of Case: Cable TV provider sued party alleged to have sold illegal decoders
Electronic Data Involved: Email and business records stored on computer
Key Insight: Reversing jury verdict of over $1.5 million in compensatory and punitive damages, court found evidence not legally sufficient to support finding that manager authored offending memorandum; computer experts testified regarding creation of memo, history of revisions and locations of copies
Nature of Case: Former employee sued former employer and managers for libel
Electronic Data Involved: Word document
Key Insight: To enable parties to discuss more meaningfully the proper scope of any privilege and correlative redactions, court ordered producing party to show requesting party’s counsel non-redacted emails at meet and confer, reserving producing party’s right to assert any applicable privilege; court noted that process was especially appropriate since producing party had not argued that disclosure would result in unfair advantage to requesting party, but that material was irrelevant and it feared waiving privilege as to future third parties
Nature of Case: Patent infringement
Electronic Data Involved: Privileged emails
Key Insight: Government’s motion for “protective order clarifying that it may produce email in response to discovery requests by producing from paper records of email messages rather than from backup tapes and may overwrite backup tapes in accordance with Departmental directives” denied as inappropriate given history of dispute; plaintiffs awarded attorneys’ fees and costs associated with motion
Nature of Case: Suit against the government alleging mismanagement of Indian trust funds
Electronic Data Involved: Email stored on backup tapes
Key Insight: Court denied BATF’s motion to quash subpoenas since firearms tracing and licensing data maintained by BATF in federal databases was relevant and would be subject to a confidentiality order, and disclosure of the data was not precluded by appropriations statute or by law enforcement privilege
Nature of Case: City and families of shooting victims sued manufacturers, distributors and retailers of weapons
Electronic Data Involved: Database maintained by Bureau of Alcohol, Tobacco, Firearms and Explosives
Key Insight: Production of documents from litigation database without first conducting privilege review constituted inexcusable neglect and waived attorney-client privilege; inadvertent disclosure clause in governing protective order did not apply
Nature of Case: Environmental litigation
Electronic Data Involved: Memorandum selected from litigation database
Key Insight: Texas Supreme Court denied defendant’s request for mandamus relief, finding that trial court did not abuse discretion in ordering production of backup tapes since defendant failed to support its objections as required by Tex. R. Civ. P. 193.4(a)
Nature of Case: Class action against web host alleging contract breach, negligence and violation of Deceptive Trade Practices Act
Electronic Data Involved: Backup tapes
Key Insight: Default judgment entered against defendant and attorneys’ fees awarded to plaintiff, pursuant to Fed. R. Civ. P. 37, for defendant’s willful and intentional destruction of laptop presumably containing crucial evidence of defendant’s decoder key modification programs, sale records and customer lists
Nature of Case: Cable TV provider sued businessman for cable TV theft
Electronic Data Involved: Laptop
Key Insight: Subpoena seeking non-party’s software trade secrets enforced since trade secrets were relevant and necessary to patent suit and need for information outweighed possible injury to third party
Nature of Case: Patent infringement
Electronic Data Involved: Software trade secrets of third party
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