Inspection – Page 11 – Electronic Discovery Law

Square D Co. v. Scott Elec. Co., 2007 WL 3488809 (W.D. Pa. Nov. 14, 2007)

Dec 01 2007

Key Insight: Declining to impose sanctions at this stage of litigation, court reiterated its prior order requiring defendant to submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at defendant’s sole expense and cost; court further denied defendant’s motion for protective order for lack of good cause

Nature of Case: Circuit breaker manufacturer alleged that defendants unlawfully imported, distributed, and sold counterfeit Square D products

Electronic Data Involved: Defendant’s computer systems

Hudson Global Res. Holdings, Inc. v. Hill, 2007 WL 1545678 (W.D. Pa. May 25, 2007)

Dec 01 2007

Key Insight: Granting in part and denying in part plaintiff’s motion for TRO/preliminary injunction, court also ordered counsel to confer and suggest within ten days an agreeable method by which plaintiff, through its computer forensics expert or otherwise, may access and permanently delete or retrieve its information from defendant’s portable external hard drive and personal computer which were in court’s custody

Nature of Case: Plaintiff alleged claims of fraud, breach of fiduciary duty, misappropriation of trade secrets and unfair competition against former employee

Electronic Data Involved: Business data; laptop and portable hard drive

John B. v. Goetz, 2007 WL 4198266 (M.D. Tenn. Nov. 26, 2007)

Dec 01 2007

Key Insight: Where goal of prior discovery orders authorizing immediate forensic copying of computers of defendants’ 50 key custodians by plaintiff?s expert, escorted by United States Marshall, was to protect against defendants? destruction of responsive information in light of defendants? persistent and contumacious refusals to produce ESI, court denied motion for stay of orders pending appeal, finding that the class?s interests far outweighed any potential harm to defendants in the execution of the orders

Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services

Electronic Data Involved: Computer systems of defendant Tennessee state agencies

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

John B. v. Goetz, 2007 WL 4014015 (M.D. Tenn. Nov. 15, 2007)

Dec 01 2007

Key Insight: Ruling on defense motions for clarification, court directed that plaintiffs? expert and court-appointed monitor shall ?forthwith inspect the State?s computer systems and computers of the fifty (50) key custodians that contain information relevant to this action,? that plaintiffs? expert or his designee ?shall make forensic copies of any computer inspected to ensure the preservation of all existing electronically stored information (?ESI?)?; court further ordered that United States Marshall should accompany the plaintiffs? expert to ?ensure that this Order is fully executed.?

Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services

Electronic Data Involved: Computer systems of defendant Tennessee state agencies

Sharma v. Vinmar Int’l, Ltd., 2007 WL 177691 (Tex. App. Jan. 25, 2007) (Not yet released for publication)

Dec 01 2007

Key Insight: Appellate court affirmed trial court’s order granting temporary injunction protecting Vinmar’s trade secrets; evidence at hearing included testimony of neutral forensic computer analyst jointly hired by the parties pursuant to court order, who examined former employees? computers and located some 321,000 “hits” using keyword search “Vinmar,” which expert said translated into thousands of Vinmar documents on those computers, and found indications of possible spoliation

Nature of Case: Chemical trading company sued former employees to enforce confidentiality and non-compete agreements

Electronic Data Involved: Proprietary information, spreadsheets

Auto. Inspection Servs., Inc. v. Flint Auto Auction, Inc., 2007 WL 3333016 (E.D. Mich. Nov. 9, 2007)

Dec 01 2007

Key Insight: Though plaintiff?s counsel?s conduct in failing to give notice to defendant prior to executing subpoena and inspecting and copying two laptop computers of non-party was ?a flagrant abuse of the subpoena power and bad faith,? sanction of dismissal was too harsh and court instead imposed “sizeable” monetary sanction

Nature of Case: Breach of licensing agreement

Electronic Data Involved: Hard drives of two laptops owned by non-party

Leviton Mfg. Co., Inc. v. Nicor, Inc., 2006 WL 1305036 (D.N.M. Jan. 6, 2006)

Dec 01 2006

Key Insight: Citing concerns that defendant had not accounted for documents that at one time were in its files, court ordered defendant to produce all responsive documents, submit a sworn declaration from a corporate officer setting forth precisely why it did not produce the documents that had been shown to the court, make its computers available for inspection by Leviton and its experts, and provide Leviton with an authorization to defendant’s email service company to produce all of defendant’s communication with its customers

Nature of Case: Patent infringement

Electronic Data Involved: Electronic documents

Arista Records, LLC v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006)

Dec 01 2006

Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive

Plasse v. Tyco Elecs. Corp., 448 F. Supp. 2d 302 (D. Mass. 2006)

Dec 01 2006

Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

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