Key Insight: Wife’s acts of removing laptop from family home and delivering it to her attorney for safekeeping were not wrongful; court established protocol for inspection and production
Nature of Case: Divorce proceeding
Electronic Data Involved: Financial data stored on laptop provided by husband’s employer
Key Insight: Based on in camera review, court granted defendant’s motion to compel based on the crime/fraud exception to the attorney-client privilege, ordered production of other documents on same subject matter and further ruled that discovery would be allowed regarding documents produced and on the issue of sanctions
Nature of Case: Patent infringement
Electronic Data Involved: Email, backup tapes
Key Insight: Production of documents from litigation database without first conducting privilege review constituted inexcusable neglect and waived attorney-client privilege; inadvertent disclosure clause in governing protective order did not apply
Nature of Case: Environmental litigation
Electronic Data Involved: Memorandum selected from litigation database
Key Insight: Motion to compel production of computer printouts denied as to those constituting work product, granted as to those that were not prepared in anticipation of litigation
Nature of Case: Inmates sued for intentional discrimination in assignment of housing, programs, and administration of discipline
Electronic Data Involved: Computer printouts showing analysis of work locations and ethnicity of inmates
Key Insight: To enable parties to discuss more meaningfully the proper scope of any privilege and correlative redactions, court ordered producing party to show requesting party’s counsel non-redacted emails at meet and confer, reserving producing party’s right to assert any applicable privilege; court noted that process was especially appropriate since producing party had not argued that disclosure would result in unfair advantage to requesting party, but that material was irrelevant and it feared waiving privilege as to future third parties
Nature of Case: Patent infringement
Electronic Data Involved: Privileged emails
Key Insight: Granting motion to compel contact list printed out from defendant’s contact management software program which was not timely included on defendant’s privilege log, court rejected “frivolous” argument that the contact list technically did not exist until it was printed: “For more than thirty years, Fed.R.Civ . P. 34(a) has included data stored on electronic media as being subject to a Rule 34 request. The fact that the data has not been printed out does not mean that the document does not exist. Indeed, if BH’s argument were meritorious, any party could avoid producing damaging documents through the simple expedient of storing them on electronic media and never printing them out.”
Nature of Case: SEC enforcement action
Electronic Data Involved: Email, spreadsheets and contact list
Key Insight: Applying the Rowe balancing test, court denied producing party’s motion to require requesting party to pay costs associated with computerized privilege review estimated to cost $28,000-40,000
Nature of Case: Copyright infringement, misappropriation of trade secrets
Electronic Data Involved: 8 hard drives
Key Insight: Appellate court granted writ and quashed trial court’s order granting party’s motion for leave to inspect non-party’s computer system; remanded with directions to trial court to craft a narrowly-tailored order that sets parameters and limitations on the inspection
Nature of Case: Insurance bad faith
Electronic Data Involved: Computer system; records of payments to physicians
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: 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
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