Third Party Discovery – Page 9 – Electronic Discovery Law

Musket Corp. v. Star Fuel of Okla., No. CIV-11-444-M, 2012 WL 3986344 (W.D. Okla. Sept. 11, 2012); No. CIV-11-444-M, 2012 WL 4363752 (Sept. 21, 2012)

Dec 01 2012

Key Insight: Where independent forensic examiner was tasked with determining whether plaintiff?s data was present on defendant?s laptop and with maintaining an image of defendant?s laptop sealed from inspection, but where plaintiff reserved the right seek discovery and thereafter subpoened the non-party investigator to produce the mirror image of defendant?s laptop, magistrate judge found that rule 45 subpoena was an appropriate discovery method and denied defendant?s motion to quash; on emergency appeal, the District Court noted that allowing direct inspection of a party?s hard drive was not routine, that because of the presence of potentially privileged material, even plaintiff?s expert should not have access to the entire hard drive without allowing defendant?s to object to the production of certain information and that in light of the short time before trial it was ?simply too late?; court noted that this ?predicament? was one plaintiff ?created itself? by waiting to seek access to the hard drive despite knowing for months of the potential that its data was present there

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Hard drive

FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., —F. Supp. 2d—, 2012 WL 4888473 (D.D.C. Oct. 16, 2012)

Dec 01 2012

Key Insight: Where FTC sought to compel defendant to search for and produce responsive ESI on backup tapes, the court resolved the question of what standard must be applied to properly analyze the producing party?s claims of burden (Rule 26(b)(2)(B) ?good cause? to overcome the burden shown by the responding party v. the standard established in FTC v. Texaco Inc., 555 F.2d 862 (DC Cir 1977) ?a showing that compliance with the subpoena ?threatens to unduly disrupt or serious hinder normal operations of a business??) and determined that in light of the narrowed request, the defendant had not established a sufficient burden and thus ordered defendant to conduct a search of the at-issue backup tapes and to produce any non-privileged materials

Nature of Case: Administrative Subpoena

Electronic Data Involved: Backup tapes

Pearson Educ., Inc. v. Doe, No. 12 Civ. 4786(BSJ)(KNF), 2012 WL 4832816 (S.D.N.Y. Oct. 1, 2012)

Dec 01 2012

Key Insight: Court denied motion for expedited discovery to Paypal Inc purportedly intended to determine the identity of an alleged copyright infringer where plaintiff failed to sustain their burden of making a clear and specific showing of good cause and sufficient reason why there motion was necessary, including because plaintiff failed to assert that Doe defendant lived in the relevant judicial district, because plaintiff failed to establish that they exhausted traditional avenues of identification and because the subpoena was overly broad, among other reasons

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from internet service provider (ISP)

AL Noaimi v. Zaid, No. 11-11560EFM, 2012 WL 4758048 (D. Kan. Oct. 5, 2012)

Dec 01 2012

Key Insight: Court denied plaintiffs? motion to quash defendants? subpoena to one of plaintiffs? email providers where plaintiffs? assertions of breadth and burden were merely conclusory and were unsupported by evidence, where defendants agreed to allow plaintiffs? counsel to review the emails before production to defendants, and where the court?s power to compel the plaintiff to consent to the isp?s production circumvented any problems with the Electronic Communications Privacy Act

Nature of Case: breach of contract, breach of fiduciary duty and related claims

Electronic Data Involved: Emails from internet service provider (ISP)

Hageman v. Accenture, No. 10-1759 (RHK/TNL), 2012 WL 8993423 (D. Minn. Oct. 19, 2011)

Dec 01 2012

Key Insight: Analyzing a question of control, court ruled that where defendant?s employees could access emails/information stored in a third party?s server ?within his or her normal day-to-day work? then that information was within defendant?s control but that information which was not accessible to the employees was no longer in defendant?s control, and thus properly requested using a Rule 45 subpoena

Nature of Case: Employment discrimination

Electronic Data Involved: ESI/emails stored on third party server

In re Application of Wilson & Partners, No. 06-cv-02575-MKS-KMT, 2012 WL 1901217 (D. Colo. May 24, 2012)

Dec 01 2012

Key Insight: Court found that third party failed to establish the reasonableness or necessity of attorney?s fees related to setting up a database to assist in production, including dealing with administrator of that database and thus upheld recommendation against recovery of attorney?s fees; court affirmed recommendation against recovery of costs related to manual review and production that resulted from abandonment of the document database (because of problems with the database) where the Magistrate Judge determined the review was an ?unnecessarily incurred expense, which [the requesting party] had no ability to control or contain;? court adopted recommendation ordering that third party respondents be responsible for half the cost of the database

Fraserside IP LLC v. Gamma Entm?t., —F. Supp. 2d—, 2012 WL 4504818 (N.D. Iowa Sept. 28, 2012)

Dec 01 2012

Key Insight: In dispute over jurisdictional discovery, court concluded that plaintiff was entitled to a ?small slice? of defendant?s Google Analytics data (which tracks and accumulates data related to websites? visitors) related to the number of visitors to defendant?s website(s) from Iowa-based IP addresses; court agreed with plaintiff that it was entitled to ?more? than a hard copy PDF ?screen grab? of the relevant information and indicated that it anticipated production as HTML pages that could be opened with a standard internet browser, but that if that was not an agreeable solution, another hearing would be held

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Google Analytics

Ohio Valley Environ. Coalition, Inc. v U.S. Army Corps of Eng?gs, No. 1:11MC35, 2012 WL 112325 (N.D. W. Va. Jan. 12, 2012)

Dec 01 2012

Key Insight: Where non-party represented that responding to subpoena would be burdensome in light of need to comb through vast amounts of ESI which had not been organized in anticipation of litigation, court determined such representations constituted ?blanket assertions? but failed to meet the high burden of showing, with particularity, the source and extent of the burden claimed and declined to quash the subpoena for that reason

Electronic Data Involved: Research materials from university professor

In re Subpoena to Creeden & Assocs., No. 12C 5573, 2012 WL 4580841 (N.D. Ill. Sept. 28, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s motion to enforce a subpoena, the court focused on the issue of the burden to the third party and granted plaintiff?s motion as to the requests for production with some limitations and also conducted an 8-part cost shifting analysis which resulted in the court?s order that plaintiff was to bear 60 of the third party?s ?staff research and production costs? and 30 of the third party?s ?legal costs?; court indicated that the ?lower legal percentage [was] a reflection of what the Court believe[d] was [the third-party?s] recalcitrance to meaningfully participate in legal negotiations concerning discovery thus far? and that ?[t]he lower legal fee-shifting amount is also an attempt to get [the third party] to object only to those points it really cares about?

Nature of Case: Antitrust

U.S. Bank Nat?l Assoc. v. PHL Variable Ins. Co., No. 12 Civ. 6811(CM)(JCF), 2012 WL 5395249 (S.D.N.Y. Nov. 5, 2012)

Dec 01 2012

Key Insight: Considering burdensome nature of subpoenas to non-parties, court found that cost shifting was appropriate and ordered plaintiff to bear the search, collection and production costs associated with the non-parties? compliance with the subpoenas; non-parties? were ordered to bear their own costs associated with privilege review, but, in order to give them ?the option of conducting a more economical analysis while minimizing the risk of waiver,? the court entered a non-waiver order pursuant to Rule 502(d) that would preclude the disclosure of privileged documents from resulting in waiver in any proceeding

Nature of Case: Alleged breach of insurance policies and violations of various related laws

Electronic Data Involved: ESI

Tag:Third Party Discovery