Third Party Discovery – Page 13 – Electronic Discovery Law

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

CE Design Ltd. v. Cy?s Crabhouse N., Inc., 2010 WL 2365162 (N.D. Ill. June 11, 2010)

Dec 01 2010

Key Insight: Where defendant alleged plaintiff had violated the protective order by using information contained on a hard drive and backup tapes provided by a third party to initiate additional lawsuits, court denied defendant?s motion to dismiss absent evidence of prejudice but granted third party?s motion for protective order preventing such use going forward; for plaintiff?s failure to supplement discovery, court denied motion for dismissal but gave permission for defendant?s expert to supplement report based on newly-obtained information

Nature of Case: Violation of Telephone Consumer Protection Act

Electronic Data Involved: ESI contained on hard drive, backup tapes

Mt. Hawley Ins. Co. v. Felman Prod. Inc., 2010 WL 3294389 (S.D. W. Va. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendants sought production from 10 foreign custodians alleged to be agents of the plaintiff, the court conducted an extensive review of evidence as to each persons? involvement with the plaintiff and the applicable case law from several jurisdictions and found as to 9 of the custodians that they maintained relevant information and that plaintiff exercised sufficient control of that information, in light of the custodian?s significant involvement with plaintiff?s business, that the information should be produced; in so holding, the court rejected plaintiff?s arguments that the discovery sought had already been produced, was not under their control, was cumulative and duplicative, and was unduly costly and burdensome to produce

Nature of Case: Claims arising from failure of tranformer for silicomanganese furnace

Electronic Data Involved: ESI in custody of foreign custodians

LG Elecs., Inc. v. Motorola, Inc., No. 10 CV 3179, 2010 WL 3075755 (N.D. Ill. Aug. 5, 2010)

Dec 01 2010

Key Insight: Court denied motion to compel non-party to produce email communications which were in the possession of a party to the action but not subject to production because of party agreement: ?This court will not require Motorola to produce e-mail communications that Vizio and LG purposefully decided not to seek in the underlying lawsuit.?

Nature of Case: Patent infringement

Electronic Data Involved: Email

CE Design Ltd. v. Cy?s Crabhouse North, Inc., 2010 WL 3327876 (N.D. Ill Aug. 23, 2010)

Dec 01 2010

Key Insight: Court vacated prior order designating contents of relevant hard drive confidential where good cause was not established by the proffered reasons for the designation; addressing defendant?s motion to disqualify plaintiff?s counsel and bar its expert for failure to timely supplement discovery by producing a relevant hard drive, the court ruled that defendant failed to offer new information that would justify such a sanction (because this issue was previously considered) where the newly-discovered documents (on the late-produced hard drive) did not change the court?s analysis as to numerosity and certification of the class and where the expert was given the opportunity to supplement his report

Nature of Case: Violation of Telephone Consumer Protection Act

Zynga Game Network, Inc. v. John Does 1-5, 2010 WL 271426 (N.D. Cal. Jan. 21, 2010)

Dec 01 2010

Key Insight: Where plaintiffs sought leave to conduct third party discovery for purpose of identifying defendants, court granted leave to serve third party subpoenas on web hosting sites for purpose of obtaining identifying information, but denied motion to allow additional discovery exceeding the scope of plaintiff?s limited, stated purpose of identification of defendants

Nature of Case: Unauthorized sales of online gambling “chips”

Electronic Data Involved: Identifying information

Solarbridge Tech., Inc. v. Doe, 2010 WL 3419189 (N.D. Cal. Aug. 27, 2010)

Dec 01 2010

Key Insight: Court granted leave to subpoena internet service providers to obtain information to reveal the identify of defendant John Doe where plaintiff adequately identified defendant Doe as an individual that accessed and disclosed plaintiff?s confidential information to a competitor; identified its steps to identify the defendant in another fashion (including attempting to contact defendant doe at the email address from which the confidential materials were sent, searching public records, contacting competitors, etc.); established to the court?s satisfaction that its suit could withstand a motion to dismiss; and showed a reasonable likelihood that the discovery would lead to the information necessary to I.D. the defendant and make service possible

Nature of Case: Violations of the Computer Fraud and Abuse Act

Electronic Data Involved: Identity of ISP subscriber

G2 Prod., LLC v. Does 1-83, 2010 WL 253336 (D.D.C. Jan. 21, 2010)

Dec 01 2010

Key Insight: Court granted Motion for Leave to Take Expedited Discovery for the purpose of discovering the identities of defendants, including their true name, address, phone number, etc. because good cause existed for such discovery where identification of the defendants was necessary for the case to progress; court ordered subpoenaed ISPs to notify the subscribers in question to provide an opportunity to quash, but ordered ongoing preservation of the subpoenaed information until resolution of any such motion

Nature of Case: Copyright infringement

Electronic Data Involved: Name of ISP subscribers

S. New England Tel. Co. v. Global Naps, Inc., 624 F. 3d 123 (2nd Cir. 2010)

Dec 01 2010

Key Insight: Finding of contempt and order to pay plaintiffs? attorney?s fees and costs was no abuse of discretion where the court?s order to disclose financial assets was ?perfectly clear? and where there was ?clear and convincing? evidence of defendants? non-compliance and that defendants were not diligent in their attempts to comply; trial court did not abuse discretion in granting default judgment against all defendants in light of willful and bad faith discovery violations, including intentional deletion of ESI and lying about the existence and location of documents which ?formed a pattern of ?prolonged and vexatious obstruction?, and where lesser sanctions would be ineffective and defendants were aware of the consequences of non-compliance with their discovery obligations

Nature of Case: Claims arising from defendants’ failure to pay for special access servers ordered from plaintiff

Electronic Data Involved: ESI

Tag:Third Party Discovery