Format Of Production – Page 28 – Electronic Discovery Law

Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007)

Dec 01 2007

Key Insight: Court ordered defendants to organize and label documents to correspond with discovery requests, or provide an index, and to submit declarations by qualified computer technicians or forensic experts setting forth specific details of any lost or destroyed data or damaged hard drives; court reserved the option to appoint a neutral computer forensic expert as a special master to investigate and assess any claim by defendants that their computer servers or hard drives were damaged during the seizures or that electronic records were lost or destroyed

Nature of Case: Infringement litigation

Electronic Data Involved: Electronic documents, hard drives

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Perez-Farias v. Global Horizons, Inc., 2007 WL 991747 (E.D. Wash. Mar. 30, 2007)

Dec 01 2007

Key Insight: Court denied defendants’ FRCP 60(b) motion for relief from discovery orders, and ordered defendants to comply with prior orders and, among other things, produce certain database in native format, and produce requested email and Excel spreadsheet

Nature of Case: Class action brought by farm workers

Electronic Data Involved: Database, email and spreadsheet

Member Servs., Inc. v. Sec. Mut. Life Ins., 2007 WL 2907520 (N.D.N.Y. Oct. 30, 2007)

Dec 01 2007

Key Insight: Court ordered defendant to produce highly relevant source code in electronic format subject to protective order in place and agreement by expert that he not share the information with others, including the plaintiffs, notwithstanding prior production in hard copy format

Nature of Case: Copyright infringement, breach of fiduciary duty, breach of contract, unfair trade practices

Electronic Data Involved: Source code

Io Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007)

Dec 01 2007

Key Insight: Court granted plaintiff’s motion to compel and denied defendant’s request to shift costs of production to plaintiff, since defendant provided no information about whether and how such information was “inaccessible” or any other information relevant to cost-shifting determination under Zubulake III; court encouraged parties to agree on most efficient means of production and noted that plaintiff had indicated willingness to provide high capacity storage devices

Nature of Case: Copyright infringement

Electronic Data Involved: Adult video content; website traffic information

MGP Ingredients, Inc. v. Mars, Inc., 2007 WL 3010343 (D. Kan. Oct. 15, 2007)

Dec 01 2007

Key Insight: Where parties had no prior agreement about the manner in which documents and ESI were to be produced and plaintiff did not specify format in requests for production, court found that defendants had the right under Rule 34 to choose the option of producing their documents and ESI as kept in the usual course of business and declined to order defendants to identify by Bates Numbers the documents and ESI that were responsive to each particular request for production

Nature of Case: Patent infringement, misappropriation of trade secrets, tortious interference, and breach of contract

Electronic Data Involved: Documents and ESI

Rebman v. Follet Higher Educ. Group, Inc., 2007 WL 1303031 (M.D. Fla. May 3, 2007)

Dec 01 2007

Key Insight: Where defendant showed that there were more than 200 million sales transactions contained in database and that it would be necessary to create a special software program to capture the information requested by plaintiffs and translate the information into a meaningful and readable format, court sustained defendant?s objections of burdensomeness and overbreadth and denied motion to compel; court would allow plaintiff to serve new, more narrowly tailored requests for production but would first require parties to confer in good faith to discuss the form in which ESI should be produced and how to ameliorate the costs attendant to production of such information

Nature of Case: Third party breach of contract and unfair trade practices

Electronic Data Involved: Sales database

Am. Fast Freight, Inc. v. Nat’l Consol. & Distrib., Inc., 2007 WL 4269794 (W.D. Wash. Nov. 30, 2007)

Dec 01 2007

Key Insight: Where accounting information was relevant to plaintiffs’ contention that defendants’ corporate form should be disregarded, court ruled that QuickBooks accounting data file for relevant time period be copied to CD and produced to plaintiffs in that form

Nature of Case: Breach of contract, unjust enrichment

Electronic Data Involved: QuickBooks accounting data file

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Kellogg v. Nike, Inc., 2007 WL 4570871 (D. Neb. Dec. 26, 2007)

Dec 01 2007

Key Insight: Resolving various discovery issues, court found defendants? explanation of document search sufficient and observed that plaintiff could not identify any particular document or category of missing documents based on evidence aside from his own incredulity; court added that, if gaps evolved after defendants’ supplementation of production, plaintiff could revisit the issue

Nature of Case: Patent infringement

Electronic Data Involved: Email and other ESI

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