Key Insight: Conducting its cost-shifting analysis ?under the Zubulake standard,? court reasoned that defendants ?failed to show that cost-shifting is appropriate because they did not establish that the production at issue was unduly burdensome or expensive, that is, that the data were kept in an inaccessible format.?
Electronic Data Involved: Emails
Key Insight: Court granted motion to compel inspection and imaging of certain of defendant?s computers/servers/devices in case involving accusations of misappropriation of confidential information by plaintiff?s former employees for the benefit of defendant but also granted defendant a protective order limiting disclosure for ?attorneys? eyes only?
Nature of Case: Missapropriation of confidential information
Electronic Data Involved: ESI
Key Insight: Where ?the Cabinet? inadvertently produced privileged emails and later sought a protective order to preclude a finding of waiver, the court held that privilege had been waived citing the delay in requesting the emails? return, the failure to object to use of the emails as a deposition exhibit, the relatively small volume of information within which the emails had been disclosed and the highly relevant content of the emails at issue
Nature of Case: Medicaid reimbursement
Electronic Data Involved: ESI
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
Key Insight: Court denied defendant’s motion to quash subpoena that sought documents, deposition transcripts and exhibits from third-party that related to defendant and that were produced by defendant in third-party’s now-settled litigation with defendant because defendant failed to comply with local rule requiring submission of a joint written statement of the matters at issue in the discovery dispute; court further noted there was nothing in the record that the target of the subpoena objected to producing the requested documents, and defendant cited no local or procedural rule which prohibited the plaintiff from subpoenaing the information from the third-party before or after plaintiff requested it from defendant
Nature of Case: Motion to quash subpoena issued by plaintiff in case pending in the Middle District of Florida, listing Nashville, Tenn. as the place of production
Electronic Data Involved: Documents, deposition transcripts and exhibits produced by defendant in other, now-settled litigation
Key Insight: Concluding that without more information it could not determine the reasonableness of Plaintiff?s request that Defendant use specific search terms for specified custodians, court ordered Defendant to run a searching using each of Plaintiff?s search terms against five custodians and for the parties to then meet and confer to attempt to reach resolution of their dispute and to return to the court if such resolution could not be reached; parties utilized modified version of Federal Circuit?s Model Order on E-Discovery in Patent Cases
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Key Insight: Addressing Defendant?s Motion for a Protective Order based on undue burden, court was ?persuaded? that no review was necessary to protect privilege because of the parties? Clawback Order and further found that a reasonable approach in light of Defendant?s assertions of burden (including that processing and review costs could exceed 4 million dollars, as represented by Defendant?s litigation support vendor) was to require Defendant to search and filter its ESI itself (rather than relying on the vendor), with all emails to be designated ?confidential? which would then shift the burden to Plaintiff?s counsel to determine if the ESI produced was over or under inclusive; Court specifically held that ?the court may consider the cost of review of ESI for privileged or responsive information in deciding whether discovery imposes an undue burden or cost on a responding party. Furthermore if the court were inclined to limit discovery based on the burden or cost of the review, I hold that the court could shift the costs of that review, either in whole or in part, to the requesting party.?
Nature of Case: Class action based on alleged entitlement to royalty payments
Electronic Data Involved: Emails, ESI
Key Insight: Where plaintiff sought the government?s production of all communications between himself and the government, all documents concerning its debt collection policies, and information related to the government?s debt collection efforts related to his debt, the court found that the government?s burden argument was unpersuasive where it lacked specific information to support the claim and where, pursuant to the factors in Rule 26(b)(2)(C)(iii), the burden did not outweigh the benefit of the requested discovery
Nature of Case: Student loan debt collection
Electronic Data Involved: ESI
Key Insight: Where relevant data could only be viewed using particular software, a license for which would cost $500, the trial court ordered Norfolk Southern to provide the data to Plaintiff ?in some useable form ? either by obtaining permission from [the owner of the software] to produce the data ?, by providing [Plaintiffs] with a computer with the necessary software? or by any other method the parties agreed to. On appeal, the court found no abuse of discretion, ?especially given the crucial nature of the evidence, the relatively minor cost of the license when compared to the amount at stake in the lawsuit, and the fact that it was Norfolk Sothern?s decision to equip its locomotives? with a recording device from which it could provide data to a third party only upon payment of a licensing fee.
Nature of Case: Personal injury arising from collision between train and tractor trailer
Electronic Data Involved: Event data recorder
Key Insight: Where, based on discrepancies in certain witnesses? testimony, Plaintiff believed that relevant investigation notes/computer journal entries were created on a date later than the date alleged by the defendant, and where the creation date was relevant to the issues in the case, the court granted plaintiff?s motion to compel a forensic investigation of the computer on which the evidence was created, but sua sponte issued a protective order that would allow Plaintiff?s forensic investigator to make a mirror image of the at-issue computer but would limit his investigation to the question of when the notes were made or modified and which prohibited the investigator from accessing or viewing information not relevant to that discreet issue
Nature of Case: Employment Discrimination
Electronic Data Involved: Computer hard drive
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