Third Party Discovery – Page 10 – Electronic Discovery Law

Special Markets Ins. Consultants, Inc. v. Lynch, No. 11 C 9181, 2012 WL 1565348 (N.D. Ill. May 2, 2012)

Dec 01 2012

Key Insight: Court granted motion to quash third party subpoenas seeking production of defendants? email records, emails, text messages, and other related information (from Yahoo and Verizon) where the court found defendants did have standing to challenge the subpoenas and where the court further found that the subpoenas violated the Stored Communications Act, which does not allow for the production of such information pursuant to civil subpoena

Nature of Case: Breach of employment contract

Electronic Data Involved: Email records and messages; phone records and text messages

Millennium TGA, Inc. v. Comcast Cable Commc?ns LLC, —F. Supp. 2d—, 2012 WL 2371426 (D.D.C. June 25, 2012)

Dec 01 2012

Key Insight: Where Plaintiff served a subpoena seeking identifying information related to one defendant and 350 ?co-conspirators? who plaintiff alleged engaged in a conspiracy to unlawfully download Plaintiff?s movie (using the BitTorrent protocol) and Comcast objected on the grounds of undue burden, among other things, the D.C. Court (the court from which the subpoena was issued) treated Comcast?s objections as a motion to quash and found that the burden of issuing the subpoena would result in undue burden to Comcast, to the defendant and to the 350 ?co-conspirators? who did not reside in the forum because they would be subjected to undue inconvenience of litigating any objections in a ?distant forum? and denied Plaintiff?s request but, recognizing Plaintiff?s efforts and interest in litigating the case, ordered Comcast to provide information related to alleged co-conspirators city and state of residence, but not identifying information, which Comcast could do without undue burden and which would allow plaintiff to seek the identifying information of the alleged co-conspirators in the jurisdiction in which they lived

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information related to ISP subscribers

Bruno v. Bozzuto?s, Inc., 850 F. Supp. 2d 462 (M.D. Pa. Feb. 6, 2012)

Dec 01 2012

Key Insight: Where plaintiffs destroyed paper copies of records that were also maintained in electronic format (by a third party) despite anticipation of litigation, court ordered discovery reopened for the purpose of allowing plaintiff to take the necessary action to acquire the electronic records and to provide them to defendant at their own cost and indicated that if the records were no longer in the third party?s possession, the court would ?reconsider its ruling? where the absence of those records would result in a greater degree of prejudice to the defendant

Nature of Case: Breach of contract

Electronic Data Involved: Electronic copies of hard copy records that had been destroyed

Musket Corp. v. Star Fuel of Okla., No. CIV-11-444-M, 2012 WL 3986344 (W.D. Okla. Sept. 11, 2012); No. CIV-11-444-M, 2012 WL 4363752 (Sept. 21, 2012)

Dec 01 2012

Key Insight: Where independent forensic examiner was tasked with determining whether plaintiff?s data was present on defendant?s laptop and with maintaining an image of defendant?s laptop sealed from inspection, but where plaintiff reserved the right seek discovery and thereafter subpoened the non-party investigator to produce the mirror image of defendant?s laptop, magistrate judge found that rule 45 subpoena was an appropriate discovery method and denied defendant?s motion to quash; on emergency appeal, the District Court noted that allowing direct inspection of a party?s hard drive was not routine, that because of the presence of potentially privileged material, even plaintiff?s expert should not have access to the entire hard drive without allowing defendant?s to object to the production of certain information and that in light of the short time before trial it was ?simply too late?; court noted that this ?predicament? was one plaintiff ?created itself? by waiting to seek access to the hard drive despite knowing for months of the potential that its data was present there

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Hard drive

FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., —F. Supp. 2d—, 2012 WL 4888473 (D.D.C. Oct. 16, 2012)

Dec 01 2012

Key Insight: Where FTC sought to compel defendant to search for and produce responsive ESI on backup tapes, the court resolved the question of what standard must be applied to properly analyze the producing party?s claims of burden (Rule 26(b)(2)(B) ?good cause? to overcome the burden shown by the responding party v. the standard established in FTC v. Texaco Inc., 555 F.2d 862 (DC Cir 1977) ?a showing that compliance with the subpoena ?threatens to unduly disrupt or serious hinder normal operations of a business??) and determined that in light of the narrowed request, the defendant had not established a sufficient burden and thus ordered defendant to conduct a search of the at-issue backup tapes and to produce any non-privileged materials

Nature of Case: Administrative Subpoena

Electronic Data Involved: Backup tapes

Pearson Educ., Inc. v. Doe, No. 12 Civ. 4786(BSJ)(KNF), 2012 WL 4832816 (S.D.N.Y. Oct. 1, 2012)

Dec 01 2012

Key Insight: Court denied motion for expedited discovery to Paypal Inc purportedly intended to determine the identity of an alleged copyright infringer where plaintiff failed to sustain their burden of making a clear and specific showing of good cause and sufficient reason why there motion was necessary, including because plaintiff failed to assert that Doe defendant lived in the relevant judicial district, because plaintiff failed to establish that they exhausted traditional avenues of identification and because the subpoena was overly broad, among other reasons

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from internet service provider (ISP)

AL Noaimi v. Zaid, No. 11-11560EFM, 2012 WL 4758048 (D. Kan. Oct. 5, 2012)

Dec 01 2012

Key Insight: Court denied plaintiffs? motion to quash defendants? subpoena to one of plaintiffs? email providers where plaintiffs? assertions of breadth and burden were merely conclusory and were unsupported by evidence, where defendants agreed to allow plaintiffs? counsel to review the emails before production to defendants, and where the court?s power to compel the plaintiff to consent to the isp?s production circumvented any problems with the Electronic Communications Privacy Act

Nature of Case: breach of contract, breach of fiduciary duty and related claims

Electronic Data Involved: Emails from internet service provider (ISP)

Call of the Wild, LLC v. Does 1-1062, 770 F. Supp. 2d 332 (D.D.C. 2011)

Dec 01 2011

Key Insight: Court denied third-party Time Warner?s motion to quash plaintiffs? subpoena seeking identifying information as to a number of allegedly infringing John Does where Time Warner failed to establish undue costs because plaintiff had been ordered to bear the costs of production and failed to establish undue burden, particularly where it admitted that ?more than fifty percent? of the work had already been accomplished

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information of ISP subscribers

United States v. AT&T, Inc., No. 1:11-cv-01560, 2011 WL 5347178 (D.D.C. Nov. 6, 2011)

Dec 01 2011

Key Insight: Court denied non-party?s motion to quash defendant?s subpoena where defendant adequately narrowed its request and where the non-party failed to establish that the burden of responding was undue, including by failing to provide particulars related to the expected burden of responding; court?s analysis closely followed standard set forth in Rule 26(b)(2)(C)(iii)

Nature of Case: DOJ investigation

Electronic Data Involved: ESI

Mgmt. Compensation Group Lee, Inc. v. Oklahoma State Univ., No. CIV-11-967-D, 2011 WL 5326262 (W.D. Okla. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where non-party OSU represented that responding to a subpoena seeking 6571 documents would require an expenditure of $1,761.24 and 55 hours of in-house counsel?s time, court found the burden was not so undue as to require protection from compliance and, in so finding, noted OSU?s financial interest in the outcome of the litigation, OSU?s close ties to a party in the case, and the amount in controversy of the underlying litigation (many millions of dollars)

Electronic Data Involved: ESI

Tag:Third Party Discovery