Key Insight: Court did not abuse discretion in denying defendant?s motion for discovery of Intoxilyzer 500 EN source code where defendant stipulated that test was administered properly and appeared to be in working order and where production would be unduly burdensome absent a showing of relevance beyond speculation
Nature of Case: Driver’s license revocation
Electronic Data Involved: Source code
Key Insight: Emails sent to co-workers to recruit them as co-plaintiffs not protected by the work product doctrine where plaintiff merely assumed co-workers would keep his communications secret but where court found that sending emails to employees of a corporation increased the likelihood that the material would reach others within the corporation and thus ruled that plaintiff forfeited the protection by using the work product ?in such a way that they may end up in the hands of [his]adversary;? where plaintiff sent emails to attorney family members and copied his non-lawyer sister or another relative, court ruled emails were protected by work product doctrine because material was prepared in anticipation of litigation and sharing with relatives ?did not significantly increase the likelihood that [defendant] would obtain private information?
Nature of Case: Employment discrimination
Electronic Data Involved: Emails
Key Insight: Where defendant alleged that identifying responsive employee emails was too burdensome in light of inability to search emails electronically, court found defendant had not satisfactorily established inability to search and ordered production of requested emails; court acknowledged that if defendant established the inability to search electronically, identifying requested emails would be overly burdensome and, in the event searching was truly impossible, ordered defendants to move for a protective order supported by an affidavit of a forensic expert providing an explanation
Nature of Case: Employment discrimination
Electronic Data Involved: Emails
Key Insight: Where defendant?s 30(b)(6) deponent did not have sufficient knowledge of defendant?s document and email retention policies or how searches of its electronically stored information were conducted and where the parties could not reach agreement regarding the proper disclosure or production of such information, court denied plaintiff?s request to take additional depositions and ordered defendant to submit an affidavit responding to nine questions crafted by the court aimed at disclosing the disputed information
Nature of Case: Race discrimination
Electronic Data Involved: Information about email and document retention and seach methodology
Key Insight: Court granted motion to compel production of emails stored for less than 181 days in web-based email account pursuant to government?s trial subpoena upon finding that such emails were not stored for purposes of back up protection and thus not in ?electronic storage? pursuant to The Stored Communications Act such that a warrant was required
Nature of Case: Child pornography
Electronic Data Involved: Previously opened emails stored for less than 181 days in web-based account
Key Insight: Court ordered third party, AOL, to show cause why it should not be held in contempt for failing to provide a response to defendant?s motion to compel as ordered by the court and gave leave to defendant to commence discovery on AOL?s ability to retrieve requested emails, among other topics, following contradictory representations from AOL and plaintiff regarding the same; court also noted plaintiff?s grant of permission to AOL to produce his emails and that defendant?s subpoena had been appropriately limited as to scope and thus ordered AOL to produce all responsive emails to plaintiff for review prior to production to defendant
Nature of Case: Civil rights action
Electronic Data Involved: Email
Key Insight: Where defendants failed to adequately respond to discovery in defiance of two court orders, trial court did not abuse its discretion in ordering forensic imaging of certain of defendants? hard drives to ensure that all responsive documents had been produced but erred in ?not providing adequate protections to safeguard the confidentiality? of defendants? information; case was remanded to the trial court for consideration of the protocol described by the appellate court, i.e., the retention of an independent expert to retrieve potentially responsive files to be reviewed by the producing party before production to ensure protection of confidentiality and privilege
Nature of Case: Age discrimination
Electronic Data Involved: ESI, hard drives
Key Insight: Where defendant represented that searching for requested documents would require ?hundreds of hours to complete? because each search resulted in thousands of records to be read and cross checked against hard copy to determine there responsiveness, and where defendant further indicated that the searching undertaken thus far yielded ?very few if any documents? that were responsive to plaintiff?s request, court denied plaintiff?s motion to compel production finding the required search ?unduly burdensome?
Electronic Data Involved: ESI
Key Insight: Where defendants sought to compel plaintiff?s compliance with a clawback provision intended to control the return of inadvertently produced documents but failed to establish the nature of the privilege claimed or the precautions taken to prevent disclosure, court ruled that defendants had failed to establish that the production of any document was ?inadvertent? and denied defendants? motion to compel
Electronic Data Involved: ESI
Key Insight: Defendant produced 138 emails whose attachments that were not linked, claiming it produced the documents in ?the normal course of business? and had no obligation to re-link the attachments. The court disagreed, stating that ?plaintiff must have the ability to identify which attachments belong to which emails.? Defendant argued it could not automatically re-link the emails with the attachments, but would have to ?employ a tedious manual process.? The court indicated Defendant ?cannot seek to preclude plaintiff from pursuing discovery based on a record-keeping system that is plainly inadequate.? The court found Defendant did not meet the burden to prove it would be unduly burdensome to re-link the message units and granted the motion (Defendant must provide data/software to allow Plaintiff to re-link or must re-produce the 138 emails with their attachments). The court denied the motion to compel Defendant to produce purchase and valuation documents, finding Defendant met its burden to show the requested information is not relevant to this case.
Electronic Data Involved: Email
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