Third Party Discovery – Page 18 – Electronic Discovery Law

Mintel Int?l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D. Ill Apr. 17, 2009)

Dec 01 2009

Key Insight: District Court found Magistrate Judge?s decisions denying plaintiff?s motions to compel third-party?s production of forensic image of its computer systems or a report from those systems ?were neither clearly erroneous or contrary to law? where Magistrate denied the motions in light of plaintiffs lack of diligence, contradictory opinions from experts, and factual evidence indicating a minimal amount of relevant data on third-party?s system and where Magistrate was therefore within the scope of her discretion

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: ESI, forensic image of hard drive

Amobi v. D.C. Dep?t of Corrs., 262 F.R.D. 45 (D.D.C. 2009)

Dec 01 2009

Key Insight: In this opinion authored by Magistrate Judge Facciola, the court conducted an analysis of waiver pursuant to FRE 502 and found that the attorney work-product privilege was waived by the inadvertent production of an attorney-prepared memorandum where defendants claimed ?several reviews of the documents?were undertaken? but offered no indication of the methodology used to review documents for privilege ?let alone any explanation of why these efforts were?reasonable in the context of the demands made upon the defendants? and thus failed to meet their burden of proving that the privilege was not waived

Nature of Case: Claims arising from DOC officer’s removal from duty following an altercation with an inmate

Electronic Data Involved: Attorney-prepared memorandum

In re Application of Michael Wilson & Partners, Ltd., 2009 WL 119374 (D. Colo. Apr. 30, 2009)

Dec 01 2009

Key Insight: Reasoning that electronic storage devices ?perform the same function as did a file cabinet in the pre-electronic era? and that they must therefore be searched ?just as they would have had to do had all the information been printed out and stored in hard copy format? and also reasoning that ?[t]he fact that duplicate documents may have been stored and maintained in more than one place is irrelevant to the duty to search all locations,? court ordered respondents to subpoenas to conduct additional searches of all electronic storage devices in their possession at the time of their response; where the sharing of production costs had been ordered, court required requesting party to post $1 million pre-judgment cost bond in light of the ?circumstances of the case? including respondents? expenditure of more than $2.5 million and fears that the requesting party would dispute their share and attempt to avoid payment

Nature of Case: Litigation between an international law firm and a new firm comprised of its former employees related to the new firm?s alleged interference in business relationships and breach of certain duties

Electronic Data Involved: ESI

Sony BMG Music Entm?t v. Doe, 2009 WL 5252606 (E.D.N.C. Oct. 21, 2009)

Dec 01 2009

Key Insight: Considering the five factors established in Sony Music Ent. v. Does 1-40, 326 F.Supp.2d 556(S.D.N.Y. 2004) to determine whether an anonymous defendant?s identity is shielded from discovery by the first amendment (in circumstances such as those presented here), court denied a motion to quash the subpoena seeking anonymous defendant?s identity where plaintiffs made a concrete showing of a prima facie claim, where the subpoena was narrowly drawn and sought limited information, where there was no alternate means of identifying the defendant, where the information was necessary to effect service on the defendant and where ?defendant has little expectation of privacy in allegedly distributing music over the internet without permission of the copyright holder?

Nature of Case: Copyright infringement

Electronic Data Involved: Identity of alleged John Doe infringer

Sony BMG Music Entertainment v. Tenebaum, , 2009 WL 1651338 (D.R.I. June 10, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion to compel compliance with third party subpoena to allow access to the hard drive of the parents of defendant accused of copyright infringement in a music downloading case where parents were not parties to the action and where the computer was purchased after defendant moved out and thus plaintiffs failed to establish likelihood of the discovery of relevant information sufficient to warrant intrusion into parents? privacy

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drive belonging to third party

Negotiated Data Solutions, LLC v. Dell, Inc., 2009 WL 733876 (N.D. Cal. Mar. 17, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel production of third party?s ESI where the court found the data relevant and not duplicative or obtainable through other sources and where the court found the protective order in place (and the court?s invitation to seek additional protection if necessary) provided appropriate protection of the third party?s information

Nature of Case: Patent infringement

Electronic Data Involved: Third party’s ESI, source code

Wolfe v. Glasgow, 2009 WL 1956687 (M.D. Fla. July 7, 2009)

Dec 01 2009

Key Insight: Court granted Motion to Quash Subpoena Duces Tecum to Non-party upon finding the subpoena ?overly broad on its face? where the subpoena failed to describe the documents sought with any particularity and would have essentially required the large third-party corporation ?to search its entire database of records to produce every document which refers or relates in any way to the named defendants and to [a former employee]?

Nature of Case: Discrimination in violation of Fair Housing Act

Electronic Data Involved: ESI

Bass v. Miss Porter?s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009)

Dec 01 2009

Key Insight: Upon in camera review of all documents produced to plaintiff by Facebook pursuant to subpoena, and in response to plaintiff?s objection to producing all such documents on the grounds that many were irrelevant and immaterial, court found ?no meaningful distinction? between the pages produced and the pages withheld and stated that ?Facebook usage depicts a snapshot of the user?s relationship and state of mind at the time of the content?s posting? and that ?relevance is more in the eye of the beholder? such that production should not be limited to plaintiff?s determination of what may be ?reasonably calculated to lead to the discovery of admissible evidence? and ordered the production of all documents produced by Facebook to defendants, rather than the smaller subset previously provided

Nature of Case: Claims arising from alleged bullying and harassment of private school student

Electronic Data Involved: Facebook

U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)

Dec 01 2009

Key Insight: Court granted motion to compel production of emails stored for less than 181 days in web-based email account pursuant to government?s trial subpoena upon finding that such emails were not stored for purposes of back up protection and thus not in ?electronic storage? pursuant to The Stored Communications Act such that a warrant was required

Nature of Case: Child pornography

Electronic Data Involved: Previously opened emails stored for less than 181 days in web-based account

State Farm Ins. Co. v. Policherla, 2009 WL 2170183 (E.D. Mich. July 20, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion to quash third party subpoena upon finding defendants? could claim no viable privacy interest and thus lacked standing and where plaintiff?s showing of relevance outweighed defendants? claims of harm; court granted plaintiff?s motion to compel claim related information, despite acknowledgement of defendants? burden, where plaintiff established the relevance of such data, but ordered a sampling of the requested data while reserving plaintiff?s prerogative to make a showing that additional disclosure would be productive

Nature of Case: RICO

Electronic Data Involved: ESI

Tag:Third Party Discovery