Key Insight: Court denied plaintiff’s motion for reconsideration of that portion of its January 31, 2007 order adopting magistrate judge’s finding that plaintiff had waived any privilege that may have applied to the 37 Non-Lotus Notes Documents
Nature of Case: Patent litigation
Electronic Data Involved: Privileged email
Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted
Nature of Case: Fraud and breach of contract claims
Electronic Data Involved: Email and non-email electronic documents restored from backup tapes
Key Insight: Court ordered GM to produce “Kentucky Firefighter” and “Dancing Granny” emails if said emails can currently be found on GM’s email system, but GM would not be required to retrieve the emails from outside sources if they were not in GM’s possession; court further ordered that GM produce at its own expense the hard drives of various GM employees requested by plaintiff
Nature of Case: Employment discrimination
Electronic Data Involved: Email and hard drives
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
Key Insight: After concluding that personal injury plaintiffs had failed to establish any document withholding or other discovery abuse by Exxon, state appellate court conditionally granted writ of mandamus and directed the trial court to vacate its orders requiring Exxon to present a deponent to testify about documents that had been requested, specifically as to: (1) existence; (2) electronic creation, duplication and storage; (3) document retention and destruction policies; (4) location; (5) organization, indexing and filing; (6) method of search; (7) completeness; and (8) authenticity
Nature of Case: Petition for writ of mandamus
Electronic Data Involved: Rule 30(b)(6) deposition
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
Key Insight: Court rejected trustee’s request for entry of default judgment based upon based on law firm’s failure to retain and timely produce relevant documents and electronically-stored information, but found that monetary sanctions were appropriate; trustee awarded his reasonable attorneys’ fees and costs incurred in pursuing all discovery in the adversary proceeding
Nature of Case: Adversary proceeding in bankruptcy court
Electronic Data Involved: Backup tapes
Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding
Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims
Electronic Data Involved: Computer systems and electronic records
Key Insight: Computer generated diary of investigation of incident by defendant’s adjusting company constituted work product and was protected from discovery
Nature of Case: Personal injury
Electronic Data Involved: Computer generated diary
Key Insight: Where plaintiff provided only partial production and made false representations to court about non-existence of responsive documents, court imposed monetary sanctions and would deem as true certain contentions
Nature of Case: Trademark infringement
Electronic Data Involved: Email concerning customer communications
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