Third Party Discovery – Page 23 – Electronic Discovery Law

Tomlinson v. El Paso Corp., 245 F.R.D. 474 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court rejected defendants’ claim that they had no control over third party’s ?computerized infrastructure? and ordered production of electronic pension plan records by defendants; because ERISA sets out employer’s responsibilities for the proper maintenance and retention of pension and welfare plan records and employer cannot delegate those duties, records maintained by third party were in “possession, custody or control” of defendants for purposes of discovery

Nature of Case: Claims under ERISA

Electronic Data Involved: Pension and welfare plan records maintained by third party

Claredi Corp. v. Seebeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007)

Dec 01 2007

Key Insight: Where plaintiff showed that defendant failed to produce hundreds of responsive emails which plaintiff ultimately obtained through third-party discovery, court found defendant’s discovery conduct to be dilatory and inadequate and imposed sanction of $54,000 for plaintiff’s attorneys’ fees, and another $20,000 payable to the court as sanction for unnecessarily prolonging and increasing the expense of the litigation

Nature of Case: Breach of contract

Electronic Data Involved: Email and other electronic documents

Corvello v. New England Gas Co., Inc., 243 F.R.D. 28 (D.R.I. 2007)

Dec 01 2007

Key Insight: Court concluded that any privilege that may have attached to documents inadvertently produced on CD was waived, since non-party?s counsel failed to exercise due care when he produced CD without first reviewing it, failed to immediately accept party?s offer to temporarily halt its document review after he was alerted that some of the documents on CD appeared to be internal communications with counsel, and furnished an inadequate privilege log after two-week delay

Nature of Case: Litigation between gas company and landowners

Electronic Data Involved: Privileged documents inadvertently produced on CD

ACS Consultant Co., Inc. v. Williams, 2007 WL 674608 (E.D. Mich. Mar. 5, 2007)

Dec 01 2007

Key Insight: Court quashed subpoena issued by plaintiff directing YAHOO! Inc. to produce all emails sent or received by individual defendant during specific time period in light of privacy and privilege concerns, but advised that plaintiff could obtain a new subpoena that was limited in scope

Nature of Case: Breach of employment agreement and wrongful termination

Electronic Data Involved: Email

In re Maura, 842 N.Y.S.2d 851 (N.Y. Sur. Ct. 2007)

Dec 01 2007

Key Insight: Court ordered that non-party law firm’s hard drive be imaged, and that law firm (not plaintiff) would be entitled to select computer forensic expert to conduct cloning process; court further ordered parties to confer on details and set basic timeframe for cloning and review of material, and ruled that plaintiff would be responsible for costs associated with search and production

Nature of Case: Proceeding to determine the validity of a right of election

Electronic Data Involved: Law firm computer

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

MarketRx, Inc. v. Turner, 2006 WL 851930 (N.J. Super. Ct. Ch. Div. Mar. 31, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court denied motion to quash as overbroad plaintiff?s subpoena to current employer of defendant which sought, among other things: documents and information describing any type of work that defendant performed, including solicitations and proposals, all documents and communications (including emails) he sent or received, and every computer or electronic equipment and he touched, including all backups, as well as extensive information about current employer’s practices and policies regarding document retention and computer backup; court further granted motion to compel defendant to produce similar information; parties to observe confidentiality order

Nature of Case: Action by employer against former employee based upon non-competition agreement

Electronic Data Involved: Computer and electronic equipment “touched” by former employee; email

Smoliak v. Greyhound Lines Inc., 2006 WL 1029643 (N.D. Fla. Apr. 19, 2006)

Dec 01 2006

Key Insight: Magistrate issued Certification of Facts for a Finding of Contempt relating to conduct of non-party Brett Cormier, a relative and employer of plaintiff who had consistently failed to comply with discovery orders or produce salary and employment records; court had previously stated: “The Court is still reluctant to order an inspection of Cormier’s computer, at his expense, to obtain this information since it seems an extreme, expensive, and unnecessarily invasive process to obtain what should be relatively easy information about Plaintiff’s income. However, Cormier must be more cooperative in producing the limited information requested of him or the Court may be left with no other option. . . . Work history and salary information is simple, straightforward information that every reputable business maintains in a variety of easily retrievable formats, and the Court simply does not accept the representations heretofore made for why Brett Cormier cannot locate this information. This issue is getting tiresome and has occupied far too much of this Court’s time and energy.”

Nature of Case: Personal injury

Electronic Data Involved: Salary and employment information

Virgin Records Am., Inc. v. Does 1-35, 2006 WL 1028956 (D.D.C. Apr. 18, 2006)

Dec 01 2006

Key Insight: Court denied without prejudice Doe defendant’s motion to quash subpoena issued to defendant’s ISP which argued that court lacked personal jurisdiction over defendant, since consideration of personal jurisdiction was premature and plaintiffs had made prima facie showing of personal jurisdiction over defendant

Nature of Case: Record companies brought infringement action arising out of internet file sharing of digital sound recordings

Electronic Data Involved: IP logs maintained by Internet Service Provider

Gavrilovic v. Worldwide Language Res., Inc., 2006 WL 1342839 (D.N.H. Apr. 18, 2006)

Dec 01 2006

Key Insight: Magistrate denied defendant’s motion for contempt order under Rule 45(e) for non-party’s alleged failure to comply with subpoena and court order, where non-party had produced roughly 3,500 pages of responsive documents, and reason for non-production of four particular emails (given to defendant by ex-employee of non-party) was because non-party did not have possession of and could not produce them since the computer and server that once contained them were no longer available to non-party

Nature of Case: Sex discrimination/harassment

Electronic Data Involved: Email

Tag:Third Party Discovery