Early Conference/Discovery Plan – Page 7

In re Stern, 321 S.W.3d 828 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: On petition for a writ of mandamus, the Supreme Court held that the trial court abused its discretion in ordering petitioner to produce communications between himself and nearly forty individuals where such discovery was not narrowly tailored to avoid the inclusion of ?tenuous information irrelevant to the establishment of jurisdiction? (the subject of petitioner?s special appearance) and held that the trial court abused its discretion in appointing a special master to conduct a forensic examination of petitioner?s hard drive where there was no showing that petitioner had defaulted in his discovery obligations, where there was no showing that a search of the hard drive would recover relevant information (particularly in light of petitioner?s use of web-based email), where the special master was appointed without following the procedures called for by the Texas Rules of Civil Procedure, where the special master?s broad authorization to search the hard drives (including the authority to choose search terms) amounted to an ?impermissible fishing expedition?, and where the trial court required no showing of the feasibility of retrieving the data by the party requesting the search

Nature of Case: Defamation

Electronic Data Involved: Emails, hard drive

Trusz v. USB Realty Investors LLC, 2010 WL 3583064 (D. Conn. Sept. 7, 2010)

Dec 01 2010

Key Insight: Where plaintiff accused defendant of a ?document dump? in the wake of its production of 4,004,183 pages of documents and where defendants argued that the high volume was a result of plaintiff?s overbroad discovery requests, the court reasoned that the issue could have been avoided had counsel conferred to refine search terms and ordered the parties to confer in good faith to reach agreement regarding reducing the volume of discovery and that absent agreement, a special master would be appointed

Nature of Case: Claims arising from alleged concealment of overvaluing real estate investments

Electronic Data Involved: ESI

Cornered, Inc. v. Does 1-2177, 2010 WL 4259605 (D.D.C. Oct. 22, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for leave to seek discovery prior to the Rule 26(f) conference for the purpose of identifying the unknown Doe defendants by allowing plaintiff to serve Rule 45 subpoenas on the relevant Internet Service Providers (ISPs), but required the ISPs to provide written notice to the subscribers in question to provide them an opportunity to move to quash

Nature of Case: Copyright infringement

Electronic Data Involved: Names of ISP subscribers

Patrick Collins, Inc. v. Does 1-1219, 2010 WL 5422569 (N.D. Cal. Dec. 28, 2010)

Dec 01 2010

Key Insight: Court granted motion for expedited discovery to allow plaintiff to serve subpoenas on certain Internet Service Providers to obtain information identifying the Doe Defendants so that plaintiff could complete service of process

Nature of Case: Copyright Infringement

Electronic Data Involved: Name of ISP subscriber

Achte/Neunte Boll Kino Beteiligungs GMBH & Co. v. Does 1-4577, 736 F. Supp. 2d 212 (D.D.C. 2010)

Dec 01 2010

Key Insight: Noting that “courts have held that Internet subscribers do not have an expectation of privacy in their subscriber information as they already have conveyed such information to their Internet Service Providers,” court denied motion to quash subpoena seeking identifying information from relevant ISPs

Nature of Case: Copyright infringement

Electronic Data Involved: Names and contact information for ISP subscribers

Humphrey v. Sallie Mae, Inc., 2010 WL 2522743 (D.S.C. June 17, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to conduct discovery prior to the Rule 26(f) conference where plaintiff sought to subpoena her own cell phone provider to obtain electronic data that was in danger of being purged pursuant to Verizon?s data retention policies and where the request was reasonable in light of the limited scope of the subpoena and the danger of irreparable harm to plaintiff if the data was lost

Electronic Data Involved: Electronic data in possession of cellular phone service provider

Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL 3718867 (W.D. Pa. Sept. 20, 2010)

Dec 01 2010

Key Insight: Stating that ?it is defendant?s responsibility to demonstrate objectively reasonable compliance? with the rules regarding ESI, the court found that defendants had failed to do so and denied their motion for a protective order; granting plaintiff?s motion to compel, the court ordered the parties to meet and confer to identify custodians for the purpose of limited discovery/sampling and to identify search terms to be utilized; court ordered defendants to identify potentially responsive ESI sources and to provide a reasonable description of the information stored therein in compliance with Local Rule 26.2

Electronic Data Involved: ESI, emails

Radian Asset Assurance, Inc. v. Coll. Of the Christian Bros. of New Mexico, 2010 WL 4338057 (D.N.M. Sept. 15, 2010)

Dec 01 2010

Key Insight: Where parties could not reach agreement regarding parameters of search protocol, court ordered defendant to utilize search terms proposed by plaintiff but declined to order search of email at the present time, established the appropriate date range, and ordered defendants to produce ?exculpatory information?, i.e., ?anything that the College … believes [plaintiff] could reasonably use or could reasonably lead to admissible evidence?; court declined to order defendant to produce the files identified as a result of the search and ordered instead the production of a report of the results and for the parties to confer regarding the results

Electronic Data Involved: ESI

Zynga Game Network, Inc. v. John Does 1-5, 2010 WL 271426 (N.D. Cal. Jan. 21, 2010)

Dec 01 2010

Key Insight: Where plaintiffs sought leave to conduct third party discovery for purpose of identifying defendants, court granted leave to serve third party subpoenas on web hosting sites for purpose of obtaining identifying information, but denied motion to allow additional discovery exceeding the scope of plaintiff?s limited, stated purpose of identification of defendants

Nature of Case: Unauthorized sales of online gambling “chips”

Electronic Data Involved: Identifying information

Susquehanna Commercial Finance, Inc. v. Vascular Res., Inc., No. 1:09-CV-2012, 2010 WL 4973317 (M.D. Pa. Dec. 1, 2010)

Dec 01 2010

Key Insight: Despite a prior agreement between plaintiff?s counsel and former defense counsel that parties would produce documents on disc or in hard copy, court ordered production of ESI in electronic format citing the ?halting nature of this action since it commenced, the questions that have come up regarding the sufficiency of Plaintiff?s production and efforts to identify responsive documents, and the absence of any showing that responding [to] Defendants? request for ESI would be unduly burdensome?

Nature of Case: Action to recover monies advanced

Electronic Data Involved: ESI

Tag:Early Conference/Discovery Plan