Local Rule – Page 4 – Electronic Discovery Law

Gateway Logistics, Inc. v. Smay, No. 12SA287, 2013 WL 1557840 (Colo. Apr. 15, 2013)

Dec 01 2013

Key Insight: Where, despite defendant?s assertion of a privacy interest in his and his wife?s (a non-party) electronic devices (computers and smartphone) and phone records, the trial court failed to conduct a proper balancing test before granting Plaintiff?s motion to compel inspection and production of the records, the Supreme Court found that the trial court had abused its discretion, that the invocation of a privacy right should have triggered analysis of the relevant balancing test, and that the wife?s non-party status was a factor for consideration, and vacated the trial court?s order and remanded for further consideration

Nature of Case: Breach of fiduciary duty and misappropriation of trade secrets

Electronic Data Involved: Personal computers, smartphone

Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sep. 23, 2013)

Dec 01 2013

Key Insight: Court sustained District’s objection that it did not have duty to produce documents from persons no longer associated with the District who were not parties to the litigation, as plaintiff failed to establish that District had the necessary control over requested documents or that District had legal right to obtain such documents on demand from former District board members, staff or employees; court further denied motion to compel forensic mirror imaging of computers and other electronic devices personally owned by current and former District board members, employees and staff, as District already produced forensic mirror images of two District computers, District lacked possession or control of personally-owned computers, there was no showing that any personally-owned computers of board members, employees and staff were used by those persons for District business, and court had significant concerns about intrusiveness of request and privacy rights of individuals to be affected

Nature of Case: Dispute over water rights

Electronic Data Involved: ESI

Out of the Box Developers LLC v. Logicbit Corp., No. 10 CVS 8327, 2013 WL 3090303 (N.C. Sup. Ct. June 5, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought production of three versions of at-issue software but encountered repeated delays on the part of Defendants and where one Defendant eventually discovered that he was in fact in possession of (i.e., had preserved) the older version of the software that Plaintiffs requested but had failed to discover the information because he failed to make inquiry of ?others under his control,? including his law firm?s IT personnel, the court elected to impose ?the lesser sanction of taxing costs? and ordered that Defendants reimburse Plaintiff for its reasonable costs and expenses associated with its various motions to compel; Defendants were ordered to install a current copy of the software on a laptop provided by the Plaintiff, to provide Plaintiff with direct access to the customized version currently in use by the Defendant/law firm, and to produce to Plaintiff a copy of the recently discovered database backup containing the software as originally installed

Nature of Case: Claims that defendants “stole a series of [Plaintiff’s] software customizations” and incorporated them into their software

Electronic Data Involved: Versions of case management software (original, customized, and current)

EPL Holdings, LLC v. Apple, Inc., No. C-12-04306 JST (JSC), 2013 WL 2181584 (N.D. Cal. May 20, 2013)

Dec 01 2013

Key Insight: Addressing parties? proposed departures from the court?s Model Protective Order, court approved protocol requiring Plaintiff?s reviewers to utilize an encrypted computer provided by Apple to conduct review of source code, including taking notes, and a ban on cell phones and other recording devices while reviewing source code (Apple promised to provide a land line); court declined to modify the Model Order?s provisions regarding printing source code, which place the burden of persuasion on the requesting party when a request for paper copies is challenged; court declined to include provision allowing Plaintiff to make electronic copies of source code and approved Defendant?s proposal requiring the parties to meet and confer regarding any electronic submission of source code; court approved provision requiring Plaintiff to return or destroy any documents containing source code at end of litigation

Nature of Case: patent infringement

Electronic Data Involved: source code

Altercare Inc. v. Clark, No. 12CA010211, 2013 WL 3356577 (Ohio Ct. App. June 28, 2013)

Dec 01 2013

Key Insight: Where defendant failed to preserve plaintiff?s work computer at a time when litigation should have been reasonably foreseeable (because plaintiff?s employment ended under ?contentious? circumstances and because plaintiff was an attorney) and despite receipt of a specific written request for preservation, the trial court did not err in dismissing defendant?s claims against the plaintiff as a sanction

Nature of Case: Breach of employment contract and related claims

Electronic Data Involved: Work computer / computer hard drive

In re Christus Health S.E. Texas, 399 S.W.3d 343 (Tex. Ct. App. 2013)

Dec 01 2013

Key Insight: Denial of motion to compel documents reflecting deceased patient?s children?s purchases and calls on the day the patient underwent his at-issue procedure was no abuse of discretion where the request for production was not sufficiently limited in time and was therefore overly broad; request for all posting to social media regarding the patient or his death was also not limited in time and thus ?overly broad on its face? and trial court did not abuse discretion in denying the motion to compel

Nature of Case: Health care liability

Electronic Data Involved: Documents reflecting purchases and calls on a particular day; Facebook/social media postings

In re Waste Management of Texas, —S.W.3d—, 2013 WL 203603 (Tex. App. Jan. 18, 2013)

Dec 01 2013

Key Insight: Court denied petition for mandamus relief from order compelling re-production of ESI in native format with metadata where Waste Management failed to establish that the order would result in undue burden, among other things; in its analysis of undue burden, the court concluded that a request for production in a ?reasonable manner? was a sufficient to satisfy the requirement that a party ?specify the form? in which ESI should be produced (rule 196.4) and that the estimated expense of $5,500.00 to accomplish reproduction did not pose an undue burden and reasoned, in part, that the order was not unduly burdensome because of Waste Management?s ?conscious decision? to remove metadata from the original production; opinion also addressed Waste Management?s claim that the matters to be disclosed included trade secrets, its claim that the order was overbroad, issues related to the preservation of claims for appeal, and the question of whether Waste Management?s arguments related to cost allocation could adequately be addressed on appeal

Nature of Case: Petition for writ of mandamus

Hull v. WTI, Inc.,—S.E.2d—, 2013 WL 2996191 (Ga. Ct. App. June 18, 2013)

Dec 01 2013

Key Insight: Where defendants produced 156,000 documents as they were kept in the ordinary course of business but where the documents were insufficiently organized and only the documents? indexes and not the documents themselves were text searchable, the trial court did not abuse its discretion in holding that the production was not consistent with Defendants? discovery obligations; appellate court noted that trial court did not hold that parties are prohibited from producing documents as kept in the ordinary course of business but rather than in this instance, ?under these circumstances,? the production was not appropriate

Nature of Case: Breach of contract, trade secret misappropriations, and “other business tort claims” and counterclaims

Electronic Data Involved: Scanned hard copy and miscellaneous ESI (e.g., email)

Trail v. Lesko, NO. GD-10-017249, 2012 WL 2864004 (Pa. Com. Pl. July 5, 2012)

Dec 01 2012

Key Insight: Relying on PA Rule of Civil Procedure 4011(b) ?which bars discovery that would cause ?unreasonable annoyance, embarrassment, oppression …?? court denied cross motions to compel discovery of parties? social media content ?because the intrusions that such discovery would cause were not offset by any showing that the discovery would assist the requesting party in presenting its case?

Nature of Case: Motor vehicle accident

Electronic Data Involved: Social Media content (e.g., Facebook)

Louisiana Worker?s Compensation Corp. v. Quality Exterior Servs. LLC, —So.3d—, 2012 WL 1668027 (La. Ct. App. May 2, 2012)

Dec 01 2012

Key Insight: Court granted writ of certiorari, reversed the ruling of the trial court, and granted defendant?s motion to compel production in native format where plaintiff failed to establish that the discovery sought was ?not reasonably accessible because of undue burden or cost? pursuant to the Louisiana Code of Civil Procedure

Nature of Case: Claims for unpaid portion of insurance premuim

Electronic Data Involved: ESI in native format

Tag:Local Rule