Archive: January 2007

1
Motion to Compel Production of Plaintiff’s Home Computer Denied as Improper Attempt to Troll for Impeachment Evidence
2
Court Denies Motion to Re-Produce Transmittal Emails in Native Format with their Attachments
3
Court Declines to Shift Cost of Restoring and Searching A Single Backup Tape, But Limits Scope of Search
4
Court Denies Request for Production of Legal Hold Notice Issued by Defendant
5
Court Modifies Its Prior Cost-Shifting Formula
6
Recounting Defendants’ “Systemic and Shocking” Discovery Abuses, Court Imposes Severe Sanctions and Appoints Discovery Monitor
7
Court Rejects Spoliation Claim Based on Alleged Failure to Preserve Chat Room Comments
8
Public Hearing on Proposed FRE 502 Occurs Today in Phoenix
9
Condemning Defendant’s Gamesmanship, Court Orders Production of Database
10
Firms Fret as Office E-Mail Jumps Security Walls

Motion to Compel Production of Plaintiff’s Home Computer Denied as Improper Attempt to Troll for Impeachment Evidence

Hedenburg v. Aramark Am. Food Servs., 2007 WL 162716 (W.D. Wash. Jan. 17, 2007)

In this employment discrimination case, defendant sought to probe the veracity of plaintiff’s claims by seeking a "mirror image" of plaintiff’s home computer hard drive. Defendant contended that plaintiff’s personal correspondence with unnamed third parties (in the form of emails or internet postings) might reveal discrepancies in her testimony about the impact of the events on her emotional state, or in her testimony about what occurred. Defendant argued that access to a plaintiff’s computer was common in employment cases, and offered to have the hard drive mirror image sent to a "special master” in an effort to avoid retrieval of privileged or other non-discoverable information. Plaintiff stated that she made a diligent search for her computer files and contended that she did not have additional information. She objected to the discovery as a "fishing expedition" and refused to permit the defendant access to her home computer’s hard drive.
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Court Denies Motion to Re-Produce Transmittal Emails in Native Format with their Attachments

Williams v. Sprint/United Mgmt. Co., 2006 WL 3691604 (D. Kan. Dec. 12, 2006)

In this decision, Magistrate Judge Waxse addressed plaintiffs’ continuing complaints about defendant’s separate production of transmittal emails and the spreadsheets they transmitted. The issue had been raised and discussed during several conferences with the court, and defendant had agreed to provide a “Spreadsheet Report” that would cross-reference the hard copy transmittal emails to the electronic spreadsheets. However, plaintiffs continued to experience difficulty matching up the transmittal emails and their attachments and moved for the production of the transmittal emails and their attachments in native format. Plaintiffs argued that this would eliminate the complicated, confusing, incomplete, and inaccurate Spreadsheet Reports and put both parties on the same discovery playing field.
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Court Declines to Shift Cost of Restoring and Searching A Single Backup Tape, But Limits Scope of Search

Semsroth v. City of Wichita, 239 F.R.D. 630 (D. Kan. 2006)

In this employment discrimination suit, the plaintiffs requested information relating to emails sent to or by other officers within the Wichita Police Department.  Through negotiations, the parties narrowed that request to copies of emails from 117 different supervising officers to the extent that such emails existed on a back-up tape of July 23, 2004.  The city moved for a protective order that would shift the cost of searching the backup tape to the plaintiffs, estimating the cost to be between $1,950 and $2,625.

Citing the Zubulake decisions, the court declined to conclude that cost of restoring and searching the email backup tape was such as to render that back-up tape "not reasonably accessible because of undue burden or cost."  However, it found that limits on the scope of the discovery were nonetheless appropriate under Rule 26(b)(2).  Accordingly, the court limited the scope of the discovery in two respects:  (1) It struck several search terms proposed by plaintiffs because it concluded that they were common enough that they might well result in identification of a significant volume of irrelevant email; and (2) It reduced the number of mailboxes to be searched from 117 to 50.  Plaintiffs would be allowed to choose which 50 mailboxes would be searched.

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Court Denies Request for Production of Legal Hold Notice Issued by Defendant

Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007)

In this personal injury product liability case, plaintiffs sought production of the legal hold notice issued by defendant to its employees, among other categories of material. The court denied the request for the legal hold notice, concluding that it was not “reasonably calculated to lead to the discovery of admissible evidence.” The court explained:

The document Plaintiffs request is simply a description of material employees were instructed not to discard. In the Court’s experience, these instructions are often, if not always, drafted by counsel, involve their work product, are often overly inclusive, and the documents they list do not necessarily bear a reasonable relationship to the issues in litigation. This is not a document relating to the Defendant’s business. Rather, the document relates exclusively to this litigation, was apparently created after this dispute arose, and exists for the sole purpose of assuring compliance with discovery that may be required in this litigation. Not only is the document likely to constitute attorney work-product, but its compelled production could dissuade other businesses from issuing such instructions in the event of litigation. Instructions like the one that appears to have been issued here insure the availability of information during litigation. Parties should be encouraged, not discouraged, to issue such directives. Defendants are not required to produce these materials.

Court Modifies Its Prior Cost-Shifting Formula

Quinby v. WestLB AG, 2007 WL 38230 (S.D.N.Y. Jan. 4, 2007)

In this opinion, the court modified its September 5, 2006 order (summarized here) which shifted to the plaintiff 30 percent of the costs of producing the emails of one witness (Barron) restored from backup tapes. After that prior order was entered, defendant submitted an affidavit from its vendor stating that 14 backup tapes had been restored in order to recover Barron’s emails, and that the total cost was $9,187.50. Plaintiff submitted a letter and exhibits in response, pointing out that the 14 tapes also contained the emails of other custodians whose emails were ordered produced and the tapes would, therefore, have had to have been restored in any event. Plaintiff argued that she should be responsible for only 30 percent of the share allocable to Barron’s emails.

The court agreed, and found it unfair to shift a portion of the entire cost since the backup tapes would have had to have been restored even if Barron’s emails had not been ordered produced. The court set out its formula for calculating plaintiff’s share of the cost, which amounted to $448, and ordered plaintiff to remit that amount to defendant within ten days.

Recounting Defendants’ “Systemic and Shocking” Discovery Abuses, Court Imposes Severe Sanctions and Appoints Discovery Monitor

Wachtel v. Health Net, Inc., 239 F.R.D. 81 (D.N.J. 2006)

In this lengthy opinion, the court ruled upon plaintiffs’ motion for entry of default based upon defendants’ discovery misconduct and other discovery-related motions. Although it reserved judgment on whether a default should be entered, the court found that a variety of severe sanctions were appropriate given defendants’ “systemic and shocking” discovery abuses. The sanctions included: (1) deeming certain facts as admitted by defendant for all purposes in the litigation, including equitable relief; (2) precluding defendant’s use of documents not produced in discovery; (3) striking privilege assertions as to certain documents; (4) imposing monetary sanctions in an amount to be determined after the court considered defendant’s financial situation; and (5) appointing a discovery monitor at defendants’ expense to review defendants’ compliance with the court’s discovery orders. The court explained:
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Court Rejects Spoliation Claim Based on Alleged Failure to Preserve Chat Room Comments

Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006)

In this trademark infringement case, plaintiff sought an array of preclusive sanctions against defendant for alleged discovery misconduct. Specifically, plaintiff argued that defendant did not make complete or timely searches for certain categories of documents and e-mails. It also contended that defendant did not give adequate instructions to its employees to preserve documents and that it improperly deleted e-mails from a customer relations chat room that might have been a source of pertinent information. Read More

Public Hearing on Proposed FRE 502 Occurs Today in Phoenix

Persons interested in the proposed new federal evidence rule addressing privilege waiver will testify before the Advisory Committee on Evidence Rules today in Phoenix, Arizona. Witnesses on today’s schedule include:

  • George L. Paul of Lewis & Roca, LLP, Phoenix
  • Thomas Y. Allman of Mayer, Brown, Rowe & Maw, Chicago
  • Frank Verderame of Plattner Verderame, PC, Phoenix; appearing on behalf of his firm and the Arizona Trial Lawyers Association
  • Carol Cure, Division Counsel, Shea Homes Limited Partnership, Scottsdale
  • Patrick J. Paul of Snell & Wilmer, L.L.P., Phoenix
  • Kenneth L. Mann of Beus Gilbert PLLC, Scottsdale
  • Thomas P. Burke, II of Burke Panzarella Rich, Phoenix
  • Michael J. O’Connor of Jennings, Strouss & Salmon, PLC, Phoenix
  • Daniel J. McAuliffe of Snell & Wilmer, L.L.P., Phoenix and President-Elect of the State Bar of Arizona
  • Patrick A. Long of Long, Williamson & Delis, Santa Ana, California and President of DRI
  • Steven K. Hazen, Secretary of the Executive Committee of the State Bar of California Business Law Section, Los Angeles
  • Melissa Richards Smith, Gillam Smith, L.L.P., Marshall, Texas
  • Edward G. Hochuli of Jones, Skelton & Hochuli, Phoenix
  • Douglas L. Christian of Harper Christian Dichter Graif, P.C., Phoenix

Comments received by the Committee to date, including the prepared statements of several of the witnesses who will be testifying, may be viewed here. A second hearing is scheduled to occur in New York City on January 29, 2007.

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Condemning Defendant’s Gamesmanship, Court Orders Production of Database

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2006 WL 3803152 (S.D. Ohio Nov. 14, 2006)

In this case involving UCC claims stemming from defendant’s internet-based check service, defendant disputed that it did sufficient business with Ohio residents to subject it to the court’s jurisdiction. The court allowed limited discovery on the issue, and plaintiff propounded a number of interrogatories concerning any business contacts between the defendant and the state of Ohio or Ohio residents. Defendant replied “unknown” to the interrogatories, and stated that its customers were not required to provide address information; however, it failed to state whether any customers, despite not being required to provide their addresses’ or their payees’ addresses, had actually done so, or whether customer or payee addresses were available to defendant in its customer database.
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Firms Fret as Office E-Mail Jumps Security Walls

From Brad Stone at the New York Times:

"SAN FRANCISCO, Jan. 10 — Companies spend millions on systems to keep corporate e-mail safe. If only their employees were as paranoid.

A growing number of Internet-literate workers are forwarding their office e-mail to free Web-accessible personal accounts offered by Google, Yahoo and other companies. Their employers, who envision corporate secrets leaking through the back door of otherwise well-protected computer networks, are not pleased.

“It’s a hole you can drive an 18-wheeler through,” said Paul D. Myer, president of the security firm 8E6 Technologies in Orange, Calif.

It is a battle of best intentions: productivity and convenience pitted against security and more than a little anxiety.

Corporate techies — who, after all, are paid to worry — want strict control over internal company communications and fear that forwarding e-mail might expose proprietary secrets to prying eyes. Employees just want to get to their mail quickly, wherever they are, without leaping through too many security hoops.

Corporate networks, which typically have several layers of defenses against hackers, can require special software and multiple passwords for access. Some companies use systems that give employees a security code that changes every 60 seconds; this must be read from the display screen of a small card and typed quickly.

That is too much for some employees, especially when their computers can store the passwords for their Web-based mail, allowing them to get right down to business. "

Read the entire article here.

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