Format Of Production – Page 25 – Electronic Discovery Law

Moore v. Abbott Labs., 2008 WL 4981400 (S.D. Ohio Nov. 19, 2008)

Dec 01 2008

Key Insight: Where defendant produced relevant emails from targeted custodians but where plaintiff sought all emails mentioning his name and where additional searching would cost $300,000, court declined to compel production of additional emails; where emails were produced in hard copy and relevant metadata could not be seen, court ordered defendants to ?determine feasibility? of electronic production and to produce in electronic form ?absent unusual circumstances?; court denied motion to compel generally where plaintiff?s requests were overbroad and unreasonable in their scope

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

E.E.O.C. v. Outback Steakhouse of FL, Inc., 2008 WL 2410415 (D. Colo. June 11, 2008)

Dec 01 2008

Key Insight: Where information requested was relevant to EEOC?s claim, and defendants failed to provide concrete substantiation of the alleged burden, either in terms of manpower, hours, or financial resources that would be required to compile it, court ruled that, even though EEOC requested information in electronic database form, defendants’ answers were not restricted by their electronic record-keeping system; court ordered defendants to make a good faith effort to compile supplemental information from all available sources

Nature of Case: Employment discrimination

Electronic Data Involved: Employment records and information

Ajaxo Inc. v. Bank of Am. Tech. and Operations, Inc., 2008 WL 5101451 (E.D. Cal. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to produce requested expert information in searchable format, pursuant to court order, until after defendants filed a motion for sanctions, but where plaintiffs failures were not willful and where prejudice to defendants was minimal, court ordered plaintiff to bear costs of defendants? motion to compel but declined to strike plaintiffs? expert or impose other severe sanctions

Nature of Case: Patent lawsuit

Electronic Data Involved: Expert’s report in searchable format

Viacom Intern. Inc. v. Youtube Inc., 2008 WL 2627388 (S.D.N.Y. July 2, 2008)

Dec 01 2008

Key Insight: Ruling on parties? cross-motions regarding production of various types of ESI sought by plaintiffs, court denied motion to compel source code given its value and secrecy and plaintiff?s failure to make proper preliminary showing justifying production; court further denied motion to compel production of schema for Google?s advertising database, but granted motion to compel as to data from YouTube logging database and schema for Google Video Content database

Nature of Case: Copyright infringement

Electronic Data Involved: Databases, computer source code which controls both the YouTube.com search function and Google’s internet search tool ?Google.com? and source code for YouTube’s ?Video ID? program

MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 5381864 (E.D. Mich. Dec. 22, 2008)

Dec 01 2008

Key Insight: Despite their production?s compliance with Fed. R. Civ. P. 34, court ordered defendants to specifically identify documents responsive to particular requests where plaintiff could not ?easily locate the documents? responsive to those requests within the production; court ordered defendant to use search terms provided by plaintiffs, despite objections of burden and privilege, but ordered use of connector term ?and? rather than ?or? to return documents ?more responsive? to the requests; court declined to order forensic imaging of hard drive but ordered defendant?s expert to produce attorney?s eyes only report of examination of the hard drive to address specific concerns and to provide plaintiffs with a directory list for all defendant?s non-Altair computer hard drives

Nature of Case: Theft of trade secrets

Electronic Data Involved: ESI, email, hard drives

Kayongo-Male v. S.D. State Univ., 2008 WL 2627699 (D.S.D. July 3, 2008)

Dec 01 2008

Key Insight: Where defendant argued it produce in hard copy format (Excel spreadsheets) all the information that defense expert relied on in creating his regression models, court ordered defendant to produce raw data in electronic format but denied plaintiff?s request to depose defense expert or persons responsible for compiling the information

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic copy of raw, unfiltered data from defendant’s human resource database which defense expert used to conduct regression analysis

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 71678 (M.D. Fla. Jan. 8, 2009)

Dec 01 2008

Key Insight: Where plaintiff produced electronically stored information on an expedited basis pursuant to court order and did not perform a privilege review of the production, but where substantial steps were taken to protect privilege during the collection phase of discovery and where those efforts were thwarted by technical mistakes and human error, court granted plaintiff?s motion for a protective order finding the privilege was not waived by the expedited production and ordering defendants to return or destroy any privilege encountered ?in the ordinary course of trial preparation?; court acknowledged outstanding issue of fact that could affect waiver as to individual documents and indicated its willingness to resolve such questions in response to an appropriate motion to do so

Nature of Case: Insurance coverage and related claims

Electronic Data Involved: Hard drive, ESI

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2008 WL 2609719 (M.D. Fla. June 30, 2008)

Dec 01 2008

Key Insight: Where third party responded to subpoena stating that responsive information was contained in previous productions by plaintiffs but refused to identify which documents previously produced came from its files, court ordered third party to produce Rule 30(b)(6) witness with most knowledge of how third party maintained its business records, both in paper and in electronic form; court further ordered that deposition be conducted at third party?s regular place of business and, if responsive to questions, third party?s corporate representatives must allow defense counsel and its IT expert or consultant to view third party?s computer(s) to determine how information was organized and stored therein; court further ordered third party to produce ESI in native format with metadata

Nature of Case: Insurance coverage and related claims

Electronic Data Involved: Unspecified ESI

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2008 WL 5479701 (M.D. Fla. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where documents produced by plaintiffs had been printed into hard copy and then scanned into electronic format and produced on CD, Special Master found that documents had not been produced as they were kept in the ordinary course of business pursuant to Rule 34 and recommended plaintiffs be ordered to produce an index identifying documents responsive specifically to moving party?s requests; court adopted Special Master?s recommendation in subsequent opinion, 2008 WL 5120696 (M.D. Fla. Dec. 4, 2008)

Nature of Case: Insurance coverage and related claims

Electronic Data Involved: Email, unspecified ESI

United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008)

Dec 01 2008

Key Insight: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms

Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests

Electronic Data Involved: Hard copy and electronic files

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