Third Party Discovery – Page 5 – Electronic Discovery Law

Am. Fed. Of Musicians of the U.S. and Canada v. Skodam Films, LLC, NO. 3:15-mc-122-M-BN, 2015 WL 7771078 (N.D. Tex. Dec. 3, 2015)

Dec 01 2015

Key Insight: Court concluded non-party?s objections to the at-issue subpoena were subject to Rule 34 requirements for objections and, addressing the non-party?s claims of overbreadth and burden, modified the subpoena upon finding that the document requests were ?facially overbroad and pose[d] an undue burden? because they called for the production of ?apparently every document? related to the making of the at-issue movie

Nature of Case: Breach of contract

Electronic Data Involved: Third party discovery, including ESI

Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)

Dec 01 2015

Key Insight: Court found privilege had been waived where at-issue documents were intermingled with non-privileged documents and produced in a consecutively numbered batch, where the government provided no information regarding how the documents were reviewed, where there was an almost 2 year delay until the production of the privilege log, where the documents were not marked as privileged, where approximately 10% (58/570) of the documents produced were privileged, where at least one privileged document was used as an exhibit in deposition without objection and where the government did not discover the allegedly inadvertent disclosure for nearly two years; where defendant provided evidence of the cost and burden of restoring backup tapes (14 weeks of work at a cost of approximately $85,400) court concluded that at-issue emails were not reasonably accessible and declined to compel production where plaintiff failed to establish that the emails may contain significant information

Electronic Data Involved: ESI, emails

Andra Grp. LP v. JDA Software Grp., LLC, No. 3:15-mc-K-BN, 2015 WL 1636602 (N.D. Tex. April 13, 2015)

Dec 01 2015

Key Insight: Court addressed 3rd party?s motion to quash allegedly burdensome subpoena and to preclude further production or to require the defendant to pay for the non-party?s expenses and found that the defendant had demonstrated its needs for ?most of the categories of documents? but also concluded that the 3rd party?s objections should be sustained in part and modified the subpoena?s requests to reduce the burden; Court rejected arguments that 3rd party?s lack of a ?dedicated IT specialist?, use of cloud based email and need to rely on employees? and or hire a vendor establish burden; court also found that ?by producing the documents in non-readable PDF format without the metadata specified by the subpoena?s instructions, and failing to serve any written objections to those instructions, p202 failed to comply with Rule 45(a)(1)(C) and 45(e)(1)?s requirement to comply with the subpoena?s specification of a form for producing ESI? and ordered re-production in accordance with the subpoena?s instruction

Electronic Data Involved: ESI

Vasquez v. Cal. Sch. of Culinary Arts, 230 Cal.App.4th 35(2014)

Dec 01 2014

Key Insight: Trial court did not err in awarding plaintiffs their attorneys’ fees and costs incurred after successfully opposing Sallie Mae’s motion to quash subpoena, as Sallie Mae lacked substantial justification for its motion given that plaintiffs did not seek to have Sallie Mae extract and compile information from paper files but only asked that Sallie Mae extract ESI from an existing database, plaintiffs never expressed an unwillingness to pay for the reasonable cost of doing so but repeatedly asked for a cost estimate, and Sallie Mae ignored plaintiffs’ requests and did not provide a cost estimate until after its motion to quash had been denied and plaintiffs’ request for attorneys’ fees was being heard

Nature of Case: 1,034 former students asserted claims of fraud, breach of contract and violations of consumer laws

Electronic Data Involved: Loan records maintained by Sallie Mae

A & R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., No. 3:07CV929 (WWE), 2014 WL 4437684 (D. Conn. Sep. 9, 2014)

Dec 01 2014

Key Insight: Magistrate judge denied as moot defendants’ request for plaintiffs’ consent to release emails stored with third party vendors Earthlink and AT&T in light of vendors? representations that, when an Earthlink.net or ATT.net user deletes an email from Outlook, the email simultaneously is deleted from the vendor’s server and cannot be recovered; magistrate judge also denied plaintiffs’ request for defendants to produce a merged data set, where one data set had 157 columns and was extracted from third-party provider?s system, and second set had more information but used different field identifiers, since a party cannot be compelled to create a document for its production and the creation of requested data compilation would inherently require the creation of a ?document,? and producing party is not required to produce ESI in more than one form

Nature of Case: Connecticut Unfair Trade Practices Act claims

Electronic Data Involved: Email, data

Lemon Juice v. Twitter, Inc., No. 502898/14, 2014 WL 4287049 (N.Y. Sup. Ct. Aug. 29, 2014)

Dec 01 2014

Key Insight: Where unknown person created Twitter account in plaintiff?s name and in violation of criminal court’s order took photo of child victim in court testifying against her tormentor and posted it to Twitter account, court ruled that plaintiff had met his burden of demonstrating a meritorious claim for intentional infliction of emotional distress and that the discovery sought from Twitter was needed in order to identify who should be named as a defendant, and that anonymous Twitter account creator?s behavior constituted an actionable tort and was not speech covered by First Amendment protection such that anonymity of creator had to yield to plaintiff?s need to redress the actionable wrong perpetrated against him; court directed Twitter to disclose basic subscriber information, records, internet protocol addresses and other similar information sufficient to identify owner of the bogus Twitter account and to preserve certain evidence

Nature of Case: Special proceeding pursuant to CPLR 3102(c) seeking an order directing Twitter to preserve certain evidence and to disclose certain information

Electronic Data Involved: Twitter subscriber information sufficient to identify the individual(s) who owned or operated particular Twitter account and logged into or “tweeted” on the account

Lozoya v. Allphase Landscape Constr., Inc., No. 12-cv-1048-JLK, 2014 WL 222326 (D. Colo. Jan. 21, 2014)

Dec 01 2014

Key Insight: Court ordered production of ESI from plaintiff?s girlfriend?s computer upon finding that the information, including when she searched for an attorney for the plaintiff and the search terms she employed, was relevant to the litigation and ordered the production of plaintiff?s ESI, despite his claims that his computers were ?broken? absent factual support for the contention that the data was not accessible; court further ordered production of all relevant ?phone ESI? in plaintiff?s possession

Nature of Case: Employment litigation (wage and hour)

Electronic Data Involved: ESI on plaintiff’s computers and on third party’s computer, “Phone ESI”

In re Transpacific Passenger Air Transp. Antitrust Litig., No. C-07-05634 CRB (DMR), 2014 WL 709555 (N.D. Cal. Feb. 24, 2014

Dec 01 2014

Key Insight: Court granted plaintiffs’ motion to quash defendant airline’s subpoena to third party Airline Tariff Publication Company (“ATPCO”) which sought production of documents and ESI previously obtained by plaintiffs from ATPCO, search terms and parameters used by plaintiffs, and communications between ATPCO and plaintiffs’ expert, where defendant had chose not to collaborate with plaintiffs and other defendants to identify relevant information, formulate search strings and download the results pursuant to a cost-sharing agreement, and parties’ stipulation regarding experts protected the requested materials from discovery

Nature of Case: Antitrust litigation

Electronic Data Involved: Historical airfare pricing data

In re Subpoena of Drasin, Advanced Career Techs., Inc. v. Does 1-10, No. ELH-13-1140, 2014 WL 585814 (D. Md. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court granted motion to quash subpoena to administrator of blog on which anonymous users posted disparaging comments about plaintiff because the burdens of the subpoena on the blog administrator — surrendering personal hard drives to plaintiff for up to 30 days, and granting plaintiff access to his personal information on the hard drives — outweighed the very little benefit, if any, that would result from the subpoena, and because the requested information was available from another source, i.e., the blog host, Google

Nature of Case: Defamation, trade libel, commercial disparagement

Electronic Data Involved: Hard drives and servers

Bell Inc. v. GE Lighting, LLC, 6-14-CV-00012, 2014 WL 1630754 (W.D. Va. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court ordered partial cost-shifting of third party?s costs in responding to subpoena upon evaluating several factors, including the third party?s (poor) financial condition, but declined to shift all costs where the third party declined the requesting parties? offer to review the documents – through outside counsel – subject to a clawback agreement (resulting in higher costs) and where the court found the third party was an interested party and that the litigation was not of public importance; court noted in its discussion that ?Courts in this district have found that it is untenable for a party to insist on individually reviewing all documents for privilege and responsiveness, rather than producing documents under a protective order with a claw back provision.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Tag:Third Party Discovery