Motion for Protective Order – Page 24 – Electronic Discovery Law

O’Grady v. Superior Court, 44 Cal.Rptr.3d 72 (Cal. Ct. App. 2006)

Dec 01 2006

Key Insight: Internet publishers successfully petitioned California appellate court for writ of certiorari directing that subpoenas issued by Apple Computer, Inc. be quashed; trial court erred in denying motion for protective order because, among other reasons, subpoena to email service provider could not be enforced consistent with the plain terms of the federal Stored Communications Act

Nature of Case: Underlying suit involved misappropriation of trade secrets and related claims

Electronic Data Involved: Email containing information regarding sources of trade secret information posted on internet

United States ex rel. Parikh v. Premera Blue Cross, 2006 WL 2927700 (W.D. Wash. Oct. 11, 2006)

Dec 01 2006

Key Insight: Court employed five-factor balancing test to determine that, under totality of circumstances, defendant?s inadvertent disclosure of privileged emails did not effect waiver; court granted defendant?s motion for return of the privileged documents

Nature of Case: Allegations of Medicare fraud and retaliatory discharge

Electronic Data Involved: Privileged emails on CD

Forterra Sys., Inc. v. Avatar Factory, 2006 WL 2458804 (N.D. Cal. Aug. 22, 2006)

Dec 01 2006

Key Insight: Court ordered parties to meet and confer and agree upon appropriate procedures for plaintiff?s expert to view disputed source code in his office in electronic format, and ordered plaintiff to file a declaration from the expert agreeing to be bound by such procedures; parties further ordered to meet and confer and agree upon a procedure by which expert could seek to change the designation of portions of the source code from his eyes only to outside counsel only

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317 (Ind. Ct. App. 2006)

Dec 01 2006

Key Insight: Court abused its descretion when it refused to enter protective order addressing Allstate’s production of computer program and manuals, since plaintiff made no showing that discovery under a protective order would be detrimental to his case, and it was shown that discovery without a protective order could be detrimental to Allstate

Nature of Case: Bad faith insurance litigation

Electronic Data Involved: Colossus computer program used by Allstate to evaluate claims

Collaboration Props., Inc. v. Tandberg ASA, 2006 WL 2398766 (N.D. Cal. Mar. 29, 2006)

Dec 01 2006

Key Insight: Court ordered plaintiff to submit amended proposal for protective order governing defendants’ production of source code, to include following items: (1) Defendants to produce a single electronic copy, to be kept either by plaintiff’s attorneys or by plaintiff’s expert; (2) electronic copy to be maintained pursuant to security scheme employed by plaintiff’s expert, as described at oral argument; and (3) Only three hard copies may be made, total

Nature of Case: Patent infringement

Electronic Data Involved: Source code

In re ULLICO Inc. Litig., 237 F.R.D. 314 (D.D.C. 2006)

Dec 01 2006

Key Insight: Where court found that ULLICO had in bad faith “grossly abused” the use of the “confidential” designation allowed under parties’ stipulated protective order, court ordered ULLICO to completely re-do its confidentiality designations and also ensure that the documents were correctly identified in parties’ joint discovery database

Nature of Case: ERISA litigation

Electronic Data Involved: Confidential documents, joint discovery database

Quinby v. WestLB AG, 245 F.R.D. 94 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Court applied Zubulake factors and granted in part defendant?s motion to shift costs, holding that defendant was entitled to recover 30 percent of the costs of restoring and searching backup tapes for responsive emails of one former employee, stating: “[I]f a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data.”

Nature of Case: Gender discrimination

Electronic Data Involved: Email stored on backup tapes

Frees, Inc. v. McMillian, 2006 WL 2668843 (E.D. Tenn. Sept. 15, 2006)

Dec 01 2006

Key Insight: Court narrowed subpoena to defendant’s new employer, setting out “tiered discovery” process: plaintiff was to identify at least one project involving files allegedly removed from disputed laptop; new employer would then search for documents and/or files of the type described that were related to that project and produce them; if any of the produced documents and/or files were shown to be relevant or reasonably calculated to lead to the discovery of admissible evidence, then the parties would proceed to the ?second tier? of discovery and plaintiff could then request documents related to other projects; if no responsive documents could be found with respect to the first identified projects, however, plaintiff would be required to make a sufficient showing to the court as to why discovery should proceed further

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Proprietary business and technological data

S.E.C. v. Brady, 2006 WL 3301865 (N.D. Tex. Oct. 16, 2006)

Dec 01 2006

Key Insight: Court sustained objection to portion of defendant’s subpoena based on undue burden, where potentially responsive electronic data was estimated to be 32,222,000 pages and there were over 226 boxes of hard copy documents, and vast majority of responsive documents were in the possession of the SEC and had either already been produced by the SEC to Brady, or would shortly be produced

Nature of Case: Securities litigation

Electronic Data Involved: Email and electronic data

Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 3371576 (N.D. Cal. Nov. 21, 2006)

Dec 01 2006

Key Insight: Where defendant demonstrated that serious questions existed both as to the reliability and the completeness of materials produced in discovery by plaintiff, including the possible alteration of email, court concluded that forensic examination of defendant’s hard drives was warranted; court ordered counsel for the parties to meet and confer regarding a protocol for the imaging and subsequent production of responsive documents

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives; email

Tag:Motion for Protective Order