Key Insight: In an opinion addressing a number of discovery issues, the court declined to compel production of email in native format where defendant provided a ?reasonable explanation? for why it chose to produce in hard copy, namely, because ?they could more easily be reviewed for responsiveness and privilege?
Nature of Case: Employment discrimination
Electronic Data Involved: Emails
Key Insight: Court denied motion for a protective order preventing disclosure of the video of defendant?s train colliding with plaintiffs? car where defendant?s concerns about video manipulation or commercial exploitation was unwarranted and unsupported by evidence beyond speculation; court ordered production of event recorder data for a relevant time period and, because of the need for proprietary software to analyze the data, ordered defendant to either secure permission for plaintiff to utilize the software independently and produce the data and software outright or make the data and software available at a mutually agreeable time and place for plaintiff?s evaluation
Nature of Case: Claims arising from train vs. car collision
Electronic Data Involved: Video of collision & event recorder data and related software
Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal
Nature of Case: Violation of False Claims Act
Electronic Data Involved: Archived ESI
Key Insight: Court found that defendant had failed to ask all employees with potentially relevant documents to search for and produce them, that some employees who were asked to search had not complied, and that employees who had complied failed to search for documents in all possible locations and granted plaintiff?s motion to compel additional searching and production; court granted motion to compel defendants to provide a complete answer to an interrogatory seeking detailed information on steps taken to locate responsive materials and ordered defendant to ?certify that all employees with potentially responsive documents searched all locations where such documents are typically stored in paper or electronic format?
Nature of Case: Claims that defendant refused to provide necessary medical care or accommodate plaintiff’s disability
Electronic Data Involved: ESI, emails
Key Insight: Where third-party (and former defendant) signed stipulation to preserve and produce ESI as if still a party to the litigation and later sought reimbursement for the review and production of data in a particular database, court ordered a database be created comprised of the four custodians at issue, that plaintiff pay $4085 to the vendor as a ?start-up fee? (pursuant to their agreement to do so), and that plaintiff and third-party split the remaining costs of creating the database, but ordered third-party to bear the costs of its own review prior to production
Nature of Case: Antitrist litigation
Electronic Data Involved: Database
Key Insight: Upon plaintiff?s first motion to compel, the court found that while information regarding defendant?s information technology department and the hardware and software used by defendant is discoverable, plaintiff?s requests were overly broad and the court could not compel responses to the interrogatories as drafted but ordered defendants to identify the computer program or software used to created or transmit the already produced documents and for defendants to produce native documents with metadata intact
Nature of Case: Employment discrimination
Electronic Data Involved: Information regarding defendant’s information technology department, ESI
Key Insight: Court granted plaintiff?s motion to compel production of data related to certain product defects and ordered defendant to bear plaintiff?s costs incurred for the 30(b)(6) deposition which revealed the existence of accessible, relevant information upon finding that both defendant and counsel failed to take reasonable efforts to locate responsive information; court ordered defendant?s to conduct searches using plaintiffs? proposed terms where the information sought was relevant and where defendant?s proposed terms were too narrow to identify all responsive information
Nature of Case: Product liability
Electronic Data Involved: Incident reports
Key Insight: District court reversed the order of the Magistrate Judge compelling production of certain videotape where defendant presented evidence that the video in question was not responsive to plaintiff?s narrow request; court denied sanctions where different and relevant video was automatically overwritten before the lawsuit was initiated, where plaintiff presented no evidence of defendant?s notice of litigation, and where the lost video was not the only evidence to support plaintiff?s position
Nature of Case: Claims arising from police department’s alleged failure to prevent an intoxicated person from driving which resulted in death
Electronic Data Involved: Video surveillance footage
Key Insight: Court ordered plaintiffs? production of cartridges containing relevant data (?akin to a ?black box??) that were relied upon by their expert in forming his opinions but found both parties proposed protective measures insufficient and ordered defendants to designate an expert or experts to review the cartridges, restricted access to the cartridges to defendants? expert(s) and counsel and their employees ?whose functions required access to the cartridge or cartridge information?, and ordered that each expert sign an agreement that they would not seek to develop technology similar to that at issue
Electronic Data Involved: Cartridge data “akin to a black box”
Key Insight: Appellate court affirmed trial court?s dismissal of charges related to defendant?s alleged possession of child pornography where FBI refused to follow the trial court?s order to produce a copy of the relevant hard drive to defendant?s expert, pursuant to the terms of a protective order, and where defendant made a ?substantial showing? that reproduction of the drive was required for the effective investigation of his defense because the FBI?s proffered solution of allowing defendant?s expert to analyze the drive at the FBI?s offices did not properly address defendant?s concerns about the privacy of his expert?s work or the deprivation of the expert?s references and resource which were not available at the proposed location
Nature of Case: Sexual exploitation of a minor
Electronic Data Involved: Hard Drive
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