Third Party Discovery – Page 23 – Electronic Discovery Law

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 2122437 (D. Kan. July 20, 2007)

Dec 01 2007

Key Insight: Although court found it “bothersome” that it no attempt at all was made by some of the founders to search, even on a random basis, their personal or office emails, balancing the burden on the founders of conducting full email searches of their non-@hssh.org email accounts against the likelihood that such searches would recover few, if any, additional documents not already produced by Heartland, court declined to require founders to conduct any searches of their personal email accounts in responding to subpoenas

Nature of Case: Antitrust and tortious interference litigation

Electronic Data Involved: Personal email accounts of plaintiff’s founders

In re Subpoena to Chronotek Sys., Inc., 2007 WL 2177013 (S.D. Tex. July 27, 2007)

Dec 01 2007

Key Insight: Magistrate judge adopted special master’s recommendations regarding motion to compel production of source code, and ordered Chronotek to produce the portions of its source code, if any, that incorporated particular technology subject to an appropriate protective order, or, if source code did not incorporate particular technology at issue, affidavit of knowledgeable person attesting to same

Nature of Case: Patent litigation

Electronic Data Involved: Source code

In re Seroquel Prods. Liab. Litig., 2007 WL 4287676 (M.D. Fla. Dec. 6, 2007)

Dec 01 2007

Key Insight: Court rejected non-party’s claim that it was entitled to recover full amount of fees expended to retrieve, identify and review 25 project files sought by plaintiffs (estimated to be $28,950, including $18,750 in attorneys fees for 50 hours of review), since non-party should have reasonably anticipated being involved in the discovery process of subsequent litigation concerning the marketing/prescribing behavior it studied, the cost could be borne by the non-party as overhead, and cost was less than four fifths (4/5) of one percent of the revenue the non-party generated from work on Seroquel products

Nature of Case: Drug product liability class action

Electronic Data Involved: 25 electronically-maintained project files relating to market research that non-party Harris performed on behalf of AstraZeneca with respect to Seroquel

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Auto. Inspection Servs., Inc. v. Flint Auto Auction, Inc., 2007 WL 3333016 (E.D. Mich. Nov. 9, 2007)

Dec 01 2007

Key Insight: Though plaintiff?s counsel?s conduct in failing to give notice to defendant prior to executing subpoena and inspecting and copying two laptop computers of non-party was ?a flagrant abuse of the subpoena power and bad faith,? sanction of dismissal was too harsh and court instead imposed “sizeable” monetary sanction

Nature of Case: Breach of licensing agreement

Electronic Data Involved: Hard drives of two laptops owned by non-party

O’Grady v. Superior Court, 44 Cal.Rptr.3d 72 (Cal. Ct. App. 2006)

Dec 01 2006

Key Insight: Internet publishers successfully petitioned California appellate court for writ of certiorari directing that subpoenas issued by Apple Computer, Inc. be quashed; trial court erred in denying motion for protective order because, among other reasons, subpoena to email service provider could not be enforced consistent with the plain terms of the federal Stored Communications Act

Nature of Case: Underlying suit involved misappropriation of trade secrets and related claims

Electronic Data Involved: Email containing information regarding sources of trade secret information posted on internet

Frees, Inc. v. McMillian, 2006 WL 2668843 (E.D. Tenn. Sept. 15, 2006)

Dec 01 2006

Key Insight: Court narrowed subpoena to defendant’s new employer, setting out “tiered discovery” process: plaintiff was to identify at least one project involving files allegedly removed from disputed laptop; new employer would then search for documents and/or files of the type described that were related to that project and produce them; if any of the produced documents and/or files were shown to be relevant or reasonably calculated to lead to the discovery of admissible evidence, then the parties would proceed to the ?second tier? of discovery and plaintiff could then request documents related to other projects; if no responsive documents could be found with respect to the first identified projects, however, plaintiff would be required to make a sufficient showing to the court as to why discovery should proceed further

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Proprietary business and technological data

Friedman v. Superior Court, 2006 WL 2497981 (Cal. Ct. App. Aug. 29, 2006) (Not Officially Published)

Dec 01 2006

Key Insight: Finding requests for production too broad and not reasonably particularized, appellate court concluded that trial court had erred in, among other things, not adequately resolving the question of how burdensome compliance with production requests would have proven to nonparties, where nonparties? counsel opined that it would take 5,260 hours to review email, at cost of $1,393,900, and requesting party?s expert estimated only 10 hours for such review; appellate court granted writ and vacated trial court’s orders

Nature of Case: Nonparties sought writ of mandate overturning trial court’s orders granting motion to compel depositions and production of documents pursuant to subpoenas

Electronic Data Involved: Email

S.E.C. v. Brady, 2006 WL 3301865 (N.D. Tex. Oct. 16, 2006)

Dec 01 2006

Key Insight: Court sustained objection to portion of defendant’s subpoena based on undue burden, where potentially responsive electronic data was estimated to be 32,222,000 pages and there were over 226 boxes of hard copy documents, and vast majority of responsive documents were in the possession of the SEC and had either already been produced by the SEC to Brady, or would shortly be produced

Nature of Case: Securities litigation

Electronic Data Involved: Email and electronic data

Fed. Trade Comm’n v. Ameridebt, Inc., 2006 WL 618563 (N.D. Cal. Mar. 13, 2006)

Dec 01 2006

Key Insight: Magistrate denied third party’s motion to stay discovery order requiring him to give permission to Google, Inc. to produce emails from his gmail account, where third party failed to establish any likelihood of success on appeal or that the balance of hardships tipped in his favor; court was “skeptical” of third party’s unsubstantiated arguments that the volume of email was large and that attorney review would be unduly costly, and noted that “email could likely be screened efficiently through the use of electronic search terms that the parties agreed upon”

Nature of Case: Allegations of consumer fraud

Electronic Data Involved: Email in third party’s Google email account

Tag:Third Party Discovery