Key Insight: Court granted defendant?s motion to compel production of ?computer images and dumpster files? for 29 custodians upon finding that the information sought was relevant and that production would not be unduly burdensome
Nature of Case: Patent Infringement
Electronic Data Involved: Computer images and “dumpster files”
Key Insight: Where plaintiff acted to avoid compliance with court?s order to produce information related to email accounts, including passwords, by repeatedly filing motions to stay discovery and by modifying the consent forms related to the examination of his email accounts to effectively delay the search, despite the court?s denial of his motions to stay discovery, the court ordered civil contempt sanctions and ordered plaintiff to pay $5,000 to the court and also ordered payment of defendants? attorneys? fees and costs related to Defendants? Accelerated Motion to Compel, necessitated by plaintiff?s dilatory behavior
Nature of Case: Breach of contract
Electronic Data Involved: Access to emails (passwords, etc.) for forensic examination
Key Insight: Where the public contents of one plaintiff?s Facebook account established that it was ?reasonable to believe? that other relevant information may also be present but where lower court only directed plaintiff to produce certain relevant photographs, appellate court remanded with instruction that the court conduct in camera review of ?all status reports, emails, photographs, and videos? to determine which of those materials, if any, were relevant; as to a separate plaintiff where no showing of potential relevance was made, appellate court found lower court properly granted her motion for a protective order
Nature of Case: Personal injury arising from auto accident
Electronic Data Involved: Social Network contents
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
Key Insight: Court denied plaintiff?s motion to compel ?complete forensic imaging and an open ended computer inspection of all of defendants ?electronically stored information?? where the court found the request was overly broad in scope and unduly burdensome and costly in light of the time and cost of the necessary privilege reviews by defendants and other expenses associated with the business interruption of such inspections, where ?plaintiff ha[d] not reasonably attempted to obtain the information it [sought] short of the proposed, burdensome computer investigation,? and where it was ?highly improbable? that the parties could complete the inspection by the close of discovery
Electronic Data Involved: Forensic inspection of computers and servers
Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs
Nature of Case: civil rights and employment law
Electronic Data Involved: ESI
Key Insight: On defendant?s appeal of lower court?s order requiring production of his iphone to opposing counsel for counsel?s review, appellate court found the order too broad and ?tantamount to ordering the production of his computer? and remanded the case with the order that plaintiff produce the iphone to the court for in camera review to identify what if any information was responsive to plaintiff?s discovery request
Nature of Case: Breach of employment contract, misappropriation of confidential information
Electronic Data Involved: iPhone
Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000
Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud
Electronic Data Involved: ESI, including QUickbooks
Key Insight: Where Defendant produced forty gigabytes of material on a single memory stick organized into folders by search term, with no other organization by custodian or otherwise, court noted that ?[o]rganizing a production to reflect how the information is kept ?in the usual course of business? sometimes requires the producing party to include different identifying information according to the type of document or file produced,? and that ?[e]mails specifically are produced in the usual course of business when responsive emails are arranged ?by custodian, in chronological order and with attachments, if any?? and found that the production was not in an appropriate format in this case; court ordered Defendant to bear the costs to convert the ESI into a readily usable format (estimated to be $8,463.00)
Electronic Data Involved: ESI
Key Insight: Plaintiffs sought to compel production of responsive documents relating to Defendant?s sale of products carrying the Little Tikes brand. Defendant had attached documents to its opposition motion that it had not previously produced to Plaintiff, which prompted the current motion. Plaintiffs requested that Defendant ?identify all custodians of documents referring or relating to Defendant?s sale? and conduct a ?forensic analysis of all Defendants? document custodians? to locate responsive documents. The court denied Plaintiff?s request for a forensic analysis, noting ?that the motion is based only on speculation and lacks conclusive proof that responsive documents are actually being withheld.? However the court found that Defendant?s ESI searching ?may have been inadequate? and were performed ?without guidance or supervision from an attorney on how to conduct a search.? The court ordered a meet and confer to identify custodians and agree on search terms, the Defendant must then perform the searches of ESI on Defendants’ computers/systems (supervised by an attorney who must then submit a declaration) and produce responsive documents.
Electronic Data Involved: ESI
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