Key Insight: Applying Zubulake balancing test, court ordered parties to share equally the cost of extracting source code from defendant’s database; however, defendant solely to bear cost of copying source code for production once it is extracted
Nature of Case: Infringement action
Electronic Data Involved: Source code
Key Insight: Concluding that defendant had a right to obtain audiotaped prior statements of witnesses for use in cross-examining the individuals whose statements were on the tapes, court noted in footnote: “The audiotapes at issue here are the functional equivalent of written statements. It would be a towering triumph of form over substance to hold that [defendant’s former employer’s] choice of an electronic, rather than a documentary, mode of preserving the witness’ statements puts the statements beyond the reach of a subpoena duces tecum.”
Nature of Case: Criminal sexual harassment
Electronic Data Involved: Audiotapes of witness’ statements made by defendant’s former employer
Key Insight: Defendant ordered to produce crash test data, but plaintiff to share in cost
Nature of Case: Product liability
Electronic Data Involved: Crash test data
Key Insight: Subpoena seeking non-party’s software trade secrets enforced since trade secrets were relevant and necessary to patent suit and need for information outweighed possible injury to third party
Nature of Case: Patent infringement
Electronic Data Involved: Software trade secrets of third party
Key Insight: Where defendant did not timely object to document requests and belated privilege log was inadequate, court determined that attorney-client privilege and work product protection had been waived and ordered production
Nature of Case: Insurance coverage
Electronic Data Involved: Insurer’s computerized “Z-note” file contents related to particular claim
Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”
Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)
Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data
Key Insight: Petition for writ of mandate denied; based on evidence that a business computer was used for accounting and nothing else, and that there was a risk the hard drive might be purged, trial court acted properly when it ordered the petitioner to produce the computer’s hard drive
Nature of Case: Misappropriation of funds
Electronic Data Involved: Hard drive
Key Insight: Email stored in government computers does not automatically become public records by virtue of that storage; private or personal email fell outside the statutory definition of “public records”
Nature of Case: Newspaper sued city to release as public record all email sent from or received by two city employees
Electronic Data Involved: Email
Key Insight: Court ordered nonparty to comply with subpoenas seeking electronic records, imposing monetary sanctions for nonparty’s unsupported argument that bankruptcy court’s automatic stay prevented it from having to comply with the subpoenas and ordering nonparty and plaintiff to meet and confer on means for compliance
Nature of Case: Copyright infringement
Electronic Data Involved: Electronic records, including email
Key Insight: Adopting Zubulake and McPeek approaches, court ordered defendant to restore a sampling of five backup tapes selected by the plaintiff; parties would thereafter be required to make additional submissions addressing whether the burden or expense of satisfying the entire request was proportionate to the likely benefit
Electronic Data Involved: Email stored on backup tapes
Copyright © 2022, K&L Gates LLP. All Rights Reserved.