Inspection – Page 8 – Electronic Discovery Law

Chevron U.S.A., Inc. v. M&M Petroleum Servs., Inc., 2008 WL 5423820 (C.D. Cal. Dec. 30, 2008)

Dec 01 2008

Key Insight: Where defendant offered plaintiff access to the relevant computer for analysis but where defendant had not yet provided access and had failed to confirm production of all responsive documents from all relevant computers pursuant to court order, court ordered defendant to make computer available within 15 days so that plaintiff?s expert might ?ascertain for itself whether all responsive documents have been produced or?whether any relevant information on the hard drive or drives have been destroyed, erased, or wiped? and to serve verified supplemental responses to discovery indicating ?a diligent search of every computer [at issue]?

Nature of Case: Complaint for declaratory relief pursuant to Petroleum Marketing Practices Act

Electronic Data Involved: Hard drives

Advante Int’l Corp. v. Mintel Learning Tech., 2008 WL 928332 (N.D. Cal. Apr. 4, 2008)

Dec 01 2008

Key Insight: Where court had earlier ruled that defendant could recover attorney fees and costs relating to motion to compel and forensic inspection of plaintiff?s computer servers, court denied defendant?s subsequent request for $944,902 in attorneys? fees and instead awarded $105,000 as reasonable amount of attorneys? fees incurred; court further ordered plaintiff to pay neutral computer expert only for fees directly related to forensic inspection and not for those related to defendant’s advocacy in the action

Nature of Case: Misappropriation of intellectual property

Electronic Data Involved: Computer servers

Brokaw v. Salt Lake County, 2008 WL 5449065 (D. Utah Dec. 30, 2008)

Dec 01 2008

Key Insight: Despite court?s acknowledgment of the requested data?s relevance, plaintiff?s offer to provide a technical expert to perform the search, and plaintiff?s proffer of at least three alternative search protocols, court denied plaintiff?s motion to compel a school district to search for specified terms in the databases of all its schools where court found that the proposed discovery imposed an excessive burden due to the district?s lack of technical resources and where plaintiff?s proposals failed to sufficiently lessen that burden

Nature of Case: Complaint alleges unreasonable seizure of high school student and use of excessive force resulting in permanent injuries

Electronic Data Involved: Computer databases at all school’s in district

John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008)

Dec 01 2008

Key Insight: Applying a five-factor balancing test and in light of significant confidentiality and federalism concerns present in the case, Sixth Circuit concluded that certain aspects of district court’s orders constituted a ?demonstrable abuse of discretion,? and granted, in part, defendants? petition for mandamus and set aside those provisions of the district court’s orders that required forensic imaging of state-owned and privately owned computers, including the provisions that required U.S. Marshal or his designee to assist plaintiffs’ computer expert in execution of orders

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

Electronic Data Involved: State-owned and privately owned computers

Huang v. Gateway Hotel Holdings, 2008 WL 2486030 (E.D. Mo. June 18, 2008)

Dec 01 2008

Key Insight: Court ruled that plaintiffs were not required to produce for forensic inspection their ?desktop computers, cell phones, e-mail machines, laptop computers, mobile phones, ESI storage media, handheld computers and personal digital assistants,? but ordered plaintiffs determine which plaintiffs owned such devices and to produce a list of names and equipment to defendant within 20 days, and defendant would be allowed to re-file the discovery request with a showing of need; court further ruled that defendant need not produce pay and time records in an accessible electronic format but gave plaintiffs leave to re-file motion upon a showing that defendant had not supplied all available pay and time records

Nature of Case: FLSA claims, retaliation

Electronic Data Involved: Computers, cell phones and ESI storage devices used by plaintiffs

Ferron v. Echostar Satellite, LLC, 2008 WL 341310 (S.D. Ohio Feb. 6, 2008)

Dec 01 2008

Key Insight: Concluding that ESI sought from plaintiff’s computers directly related to issues in dispute and that the computers likely contained certain relevant evidence that was not contained on CD-ROMs or email attachments previously produced by plaintiff, court granted defendants? motion for an extension of the date by which to designate experts to a date after their inspection of plaintiff’s computers; court extended various discovery deadlines and ordered parties to confer to formulate a procedure reasonably calculated to afford the moving defendants the discovery to which they were entitled, while at the same time protecting plaintiff?s privileged information

Nature of Case: Plaintiff alleged claims under Ohio consumer protection laws based upon emails received from defendants

Electronic Data Involved: Computer hard drives

Bianco v. GMAC Mortgage Corp., 2008 WL 4661241 (E.D. Pa. Oct. 22, 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion to compel production of defendant?s general counsel?s laptop for imaging despite testimony that the laptop had been used to create some of the documents at issue where there was no evidence of discovery misconduct, where defendant searched extensively for and produced documents responsive to plaintiff?s requests, and where the ?intrusive search? would likely lead to the disclosure of privileged and confidential information ; court noted that Rule 34 does not create ?a routine right of direct access to a party?s electronic information system, although such access may be justified in some circumstances?

Nature of Case: Discrimination and retaliation in violation of Americans with Disabilities Act

Electronic Data Involved: Hard drive, emails

Cantrell v. Cameron, 195 P.2d 659 (Colo. 2008)

Dec 01 2008

Key Insight: Finding the court abused its discretion when it ordered production of a laptop for inspection but declined to incorporate restrictions or narrow scope of inspection and denied defendant?s motion for a protective order despite confidentiality concerns including attorney-client privilege and proprietary business information, appellate court vacated order and directed lower court to issue protective order limiting scope of inspection; court noted that while personal computers do implicate confidentiality issues requiring ?serious consideration of a person?s privacy interest,? ?a personal computer?s contents are not confidential by nature?

Nature of Case: Traffic accident resulting in personal injury

Electronic Data Involved: ESI, laptop

MSC Software Corp. v. Altair Eng?g, Inc., 2008 WL 4940361 (E.D. Mich. Sept. 9, 2008)

Dec 01 2008

Key Insight: Special Master recommended production of un-redacted source code repository, development ?twiki? and operational versions of programs at issue to experts and plaintiff?s counsel where access to current versions was ?reasonable? before experts drafted reports and where prior orders did not prohibit it; Special Master also recommended in-person confirmation that production included all required information as kept in usual course of business

Nature of Case: Theft of trade secrets

Electronic Data Involved: source code repository, development “twiki”

Ameriwood Indus., Inc. v. Liberman, 2007 WL 685623 (E.D. Mo. Feb. 23, 2007)

Dec 01 2007

Key Insight: On joint motion for clarification of court’s December 27, 2006 order, court approved parties’ agreed search term protocol but denied plaintiff’s request for list of ?hits? generated by searches; court further approved joint request for expert to provide information concerning defendants’ usage of their computer equipment, specifically: (1) use of erasure software or ?defragmentation? software; (2) use of detachable, portable storage media to access or download files; (3) evidence of mass deletions of files; and (4) evidence of large gaps in the contents of the files

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives, deleted email and other files

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