Third Party Discovery – Page 17 – Electronic Discovery Law

Dassault Systemes, S.A. v. Childress, 2009 WL 3602084 (E.D. Mich. Oct. 27, 2009)

Dec 01 2009

Key Insight: Court granted leave to serve subpoena to procure computers and documents seized from the defendant despite finding that the items were procured through the coercive powers of the grand jury (and thus subject to stricter showing to compel their discovery) where plaintiff showed the evidence would be otherwise available through civil discovery and where the court could not conceive how such access would reveal anything about the nature, direction or scope of the grand jury?s inquiry

Nature of Case: Copyright and trademark infringement

Electronic Data Involved: Computers

Viacom Int?l, Inc. v. YouTube Inc., 2009 WL 102808 (N.D. Cal. Jan. 14, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of third party?s materials related to plaintiffs despite objections where documents sought were relevant and where the alleged burden was insufficient in light of probable reimbursement to third party by plaintiffs, plaintiffs? performance of the necessary privilege review, and third party?s prior success in reducing the volume of responsive documents; where defendants sought third party material unrelated to plaintiffs, court ordered defendants and third party to meet and confer regarding scope of production and ordered defendants to bear the cost; court also ordered meet and confer regarding format of production, including specific consideration of granting defendants access to Kroll database where documents were stored

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

N.A. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 WL 4110889 (S.D. Ohio Nov. 19, 2009)

Dec 01 2009

Key Insight: Where third party sought sanctions/costs and attorney?s fees for plaintiff?s alleged violation of its obligation to avoid the imposition of undue burden or expense on a non-party following the third party?s expenditure of more than $50,000 in responding to plaintiff?s subopoena (including the cost of converting electronically stored information for review), court denied third party?s motion where plaintiff?s subpoena sought relevant documents within a reasonable time frame and where third party voluntarily complied with the subpoena without conditioning its compliance on reimbursement

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

In re Apotex, Inc., 2009 WL 618243 (S.D.N.Y. Mar. 9, 2009)

Dec 01 2009

Key Insight: Concluding that discovery requests were unduly intrusive and burdensome, court vacated grant of permission to obtain discovery for use in Canadian litigation and quashed the resulting subpoena because responding to the subpoena would require substantial effort on the part of a non-party because of the passage of time, because relevant data was not readily available from a database, as anticipated, due to the organizational structure of the database, and because a privilege review requiring subs6tantial resources would likely need to be undertaken

Nature of Case: Canadian litigation

Electronic Data Involved: ESI from database

Carolina Materials, LLC v. Continental Cas. Co., 2009 WL 4611519 (W.D.N.C. Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production

Nature of Case: Insurance contract dispute

Electronic Data Involved: ESI on relevant computers and servers

D.M. v. J.E.M., 873 N.Y.S. 2d 447 (N.Y. Fam. Ct. 2009)

Dec 01 2009

Key Insight: Finding ?no demonstration of legal prejudice, or that it is unreasonable or burdensome to respondent to be required to execute such an authorization? and ?[i]n aid of the policy of compelling the production of evidence at trial,? court granted petitioner?s motion for order requiring respondent to sign authorization required by Yahoo! to release information related to respondent?s email account; finding the authorization too broad, court dictated revised language to be incorporated prior to signing

Nature of Case: Family offense proceeding alleging father sent mother vulgar messages and made false allegations of child abuse

Electronic Data Involved: Email

In re McKesson Governmental Entities Average Wholesale Price Litig., 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where government agency objected to defendants? subpoena for the production of documents previously produced in a separate litigation on grounds of undue burden and cost based on the assertion that it needed to re-review all documents prior to production because some documents were subject to the deliberative process privilege and others were highly confidential, court held that the privilege had been waived by the agency?s failure to object in its initial response and by the production in separate litigation, ordered the documents produced under the POD ?Confidential, For Outside Attorney Eyes Only? and ordered defendants to bear the costs ?of copying and producing the documents in electronic form?

Nature of Case: Allegations that defendants artificially increased the published price of prescription drugs

Electronic Data Involved: ESI previously produced in separate litigation and maintained in database by third party

Hope for Families & Cmty. Servs., Inc. v. Warren, 2009 WL 1066525 (M.D. Ala. Apr. 21, 2009)

Dec 01 2009

Key Insight: Court found emails withheld by non-party independent contractor were protected by attorney-client privilege (and work product in some cases) where independent contractor acted as representative of plaintiff for purpose of securing bingo license from the county and was authorized to communicate with counsel on plaintiff?s behalf, among other things, and where the subject communications satisfied the five-prong test borrowed from the ?corporate employee context? requiring that the communication was made for the purpose of securing legal advice for the corporation, at the direction of the corporation, that the subject of the communication was within the scope of the independent contractor?s duties, and that the communication was not disseminated beyond persons needing to know its contents; court found common interest doctrine applicable where non-party and plaintiff?s interests were identical pursuant to the terms of their consulting contract and the nature of their relationship

Orbit One Commc?ns, Inc. v. Numerex Corp., 2009 WL 799975 (E.D. La. Mar. 20, 2009)

Dec 01 2009

Key Insight: Court ordered plaintiffs to bear cost of non-party?s production in response to plaintiffs? subpoena where Fed. R. Civ. P. 45 provides for protection of a non-party from undue burden or expense and where the court found the non-party?s expenditure of $6,000 to respond ?significant?; court?s analysis also noted the parties? failure to fix production costs in advance, as discussed in the Advisory Committee Notes, and plaintiffs? awareness of the possibility that the non-party would request reimbursement

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Johnson v. U.S. Bank Nat?l Assoc., 2009 WL 4682668 (S.D. Ohio Dec. 3, 2009)

Dec 01 2009

Key Insight: Court granted motion to serve preservation subpoena on third-party prior to the Rule 26(f) conference where plaintiff showed good cause for such a subpoena, including the potential relevance of the documents and the danger of spoliation where the company had been ?dormant? since 2006, and where the subpoena was narrowly tailored to prevent spoliation and did not impose an immediate obligation to produce documents

Nature of Case: Class action

Electronic Data Involved: ESI

Tag:Third Party Discovery