Third Party Discovery – Page 12 – Electronic Discovery Law

Hard Drive Prods., Inc. v. Does 1-118, No. C 11-01567 LB, 2011 WL 1431612 (N.D. Cal. Apr. 14, 2011)

Dec 01 2011

Key Insight: Where plaintiff demonstrated that (1) the Doe defendants are real people who may be sued in federal court; (2) it has unsuccessfully attempted to identify the Doe defendants prior to filing this motion; (3) its infringement and civil conspiracy claims against the Doe defendants could survive a motion to dismiss; and (4) there is a reasonable likelihood that service of the proposed subpoenas on the ISPs will lead to information identifying the Doe defendants, court granted motion for expedited discovery to allow plaintiffs to serve subpoenas seeking information to identify the unknown plaintiffs

Nature of Case: Copyright infringement

Electronic Data Involved: Information related to identity of Does 1-118

Tener v. Cremer, 931 N.Y.S.2d 552 (N.Y. App. Div. 2011)

Dec 01 2011

Key Insight: Addressing the obligation of a non-party to produce ESI that was deleted through ?normal business operations?, the court found that the Naussau Guidelines provided the best approach to determine the third party?s obligation to produce allegedly inaccessible data where the guidelines called for a cost/benefit analysis involving the difficulty of the production at issue; court found plaintiff had shown ?good cause? for needing the requested ESI but that there was insufficient evidence of the non-party?s alleged burden of production (including, for example, whether the at-issue ESI had actually been deleted, whether it could actually be retrieved, the cost of such retrieval, etc.) and thus remanded the case to the Supreme Court for ?a hearing on whether the information plaintiff seeks is ?inaccessible? and hence whether [the non-party] has the ability to comply with the subpoena; the appellate court reversed the Supreme Court?s ruling holding the non-party in contempt for failure to comply with a judicial subpoena

Nature of Case: Defamation

Electronic Data Involved: Identity of all persons who accessed the internet using a certain computer or internet portal on a certain day

Suzlon Energy Ltd. v. Microsoft Corp.,671 F.3d 726(9th Cir. 2011)

Dec 01 2011

Key Insight: In this case, the Ninth Circuit affirmed the decision of the District Court that the Electronic Communications Privacy Act (ECPA) applies to foreign citizens and thus precluded Microsoft Corporation from producing a foreign citizen?s emails, which were stored on its server.

Electronic Data Involved: Emails stored on domestic server

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

In re Google Litig., No. C 08-03172 RMW (PSG), 2011 WL 6113000 (N.D. Cal. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where third party objected to plaintiff?s subpoena as overly broad and burdensome but nevertheless undertook a limited search which resulted in the identification of zero documents, but where plaintiff argued the search was halfhearted and that additional searching was required, the court took notice of objective of the recently adopted Model Order on E-Discovery in Patent Cases and indicated its applicability to third parties and thereafter ordered plaintiff to provide the non-party with five search terms to be utilized in additional searching and that plaintiff would bear the costs of any terms beyond the limits agreed to by the parties or granted by the court

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Bower v. Bower, No. 10-10405-NG, 2011 WL 3702086 (D. Mass. Apr. 5, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel Yahoo! and Google to produce emails in violation of Stored Communications Act and declined to rely upon defendant?s ?status as a fugitive? to find that she was deemed to have given consent or to issue an order requiring consent which, if defied, would allow the implication that consent had been given where the court reasoned that ?there is nothing in [defendant?s] actions from which this court can imply an intent to consent to the disclosure of her information

Nature of Case: Child abduction

Electronic Data Involved: Web-based email

Veolia Transp. Servs. v. Evanson, No. CV-10-01392-PHX-NVW, 2011 WL 5909917 (D. Ariz. Nov. 28, 2011)

Dec 01 2011

Key Insight: Where, prior to being named a party to the action, defendant failed to preserve ESI (including failing to pay a vendor for imaging her hard drive, which resulted in the vendor’s destruction of the image) despite the receipt of two subpoenas, where the court found the spoliation to be at least willful, and where the circumstances surrounding the spoliation permitted an inference that the information destroyed was highly relevant to the litigation, court found an entry of default was appropriate and set a hearing to determine the appropriate damages

Nature of Case: Tortious interference with a contract, breach of contract, defamation, etc. arising from anonymous emails sent to several parties

Electronic Data Involved: ESI, hard drive

In re Lazaridis, 865 F. Supp. 2d 521 (D.N.J. 2011)

Dec 01 2011

Key Insight: Court granted motion to quash subpoena issued pursuant to 28 U.S.C. ? 1782 upon finding the subpoena was unduly burdensome because of the time and/or cost that would be required to retrieve the information requested from the non-profit organization?s server, particularly in light of the availability of the information from the organization?s publically available website, and where the request implicated the First Amendment rights of the organization?s members who were subject to a privacy policy that assured them that their private information would be protected

Nature of Case: Foreign prosecution involving claims of libel and slander

Electronic Data Involved: ESI, messages from online forum(s)(stored in Structured Query Language)

Tag:Third Party Discovery