Archive: February 2007

1
Court Remands to Magistrate Judge Question of Whether Privileged Emails Printed and Produced by E-Discovery Vendor Should Be Returned
2
Court Narrows Discovery Requests, Finding Information Sought “Not Reasonably Accessible” Because of Undue Burden
3
Magistrate Judge Explains Why Discovery Sanctions Against Defendant Were Not Warranted
4
Court Grants Plaintiff Access to Computers Acquired by Defendant Two Years After Alleged Misappropriation
5
Potential Objects of Evidence Must Be in Party’s Possession, Custody, or Control for Any Duty to Preserve to Attach
6
Inadequate Legal Hold Measures, and Resulting Spoliation, Warrant Sanctions
7
Government’s Negligent Failure to Preserve Evidence Did Not Warrant Dismissal
8
MDL Case Management Order Addresses Various E-Discovery Issues
9
Court Denies Access to Hard Drives as Unwarranted “Fishing Expedition”
10
Court Sets Hearing on Plaintiffs’ Proposed Email Search Protocol and Requests Additional Information

Court Remands to Magistrate Judge Question of Whether Privileged Emails Printed and Produced by E-Discovery Vendor Should Be Returned

Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007 (Unpublished)

In this case, plaintiff claimed that it inadvertently produced over 500 privileged emails that had been deleted from a single Lotus Notes DVD, but were nonetheless printed and produced by its outside e-discovery vendor. According to plaintiff, the privileged emails (and other non-responsive emails) had been segregated into subfolders, and these subfolders had been deleted prior to the submission of the DVD to a vendor for processing. Plaintiff blamed this inadvertent production on the fact that in the Lotus Notes application (as distinguished from Microsoft Outlook and other email platforms), even though emails had been moved and segregated into separately labeled subfolders, and said folders subsequently deleted, a copy of these emails still remained in the larger folder structure. As such, when Applied Discovery converted the emails from their native form into single page image files, the emails which plaintiff had allegedly segregated into a “privileged” subfolder, and subsequently deleted, actually remained in the larger folder structure, and were thus produced to the defendant.

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Court Narrows Discovery Requests, Finding Information Sought “Not Reasonably Accessible” Because of Undue Burden

Ameriwood Industries, Inc. v. Liberman, 2007 WL 496716 (E.D. Mo. Feb. 13, 2007)

 

In this case, plaintiff alleged that defendants improperly used confidential information while in plaintiff’s employ to sabotage plaintiff’s business relationships.  Defendants asserted that plaintiff’s lost sales were due to plaintiff’s own mismanagement and not defendants’ alleged misconduct.  Defendants requested all plaintiff’s documents and communications concerning the television stand business made during the relevant period, and identified six individuals who may have responsive information.  Plaintiff argued that the request was unduly broad and overly burdensome and that the documents, the majority of which were electronically stored, numbered in the hundreds of thousands.  Defendants moved to compel production of:  (1) its internal communications and documents regarding plaintiff’s original equipment manufacturer (“OEM”) television stand business, its customers, and its management for the period from October 2005 through March 2006; (2) plaintiff’s employees’ communications with customers regarding the OEM television stand business for the same period; and (3) documents relating to plaintiff’s 2006 Consumer Electronics show presentations.

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Magistrate Judge Explains Why Discovery Sanctions Against Defendant Were Not Warranted

Williams v. Sprint/United Mgmt. Co., 2007 WL 214320 (D. Kan. Jan. 23, 2007)

Previously, Chief District Judge John W. Lungstrum had remanded this matter to the Magistrate Judge for factual findings concerning and an explanation of the reasons for the denial of plaintiffs’ motion for sanctions. This opinion sets out Magistrate Judge David J. Waxse’s explanation of why he denied plaintiffs’ motion to the extent it sought to impose sanctions upon defendant for its alleged failure to produce all spreadsheet materials in native format, its failure to timely produce the spreadsheet materials that were produced, and its conduct in re-producing spreadsheet materials in non-native format that had already been produced in native format.
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Court Grants Plaintiff Access to Computers Acquired by Defendant Two Years After Alleged Misappropriation

Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007)

This litigation involved claims against a former employee for violations of the Computer Fraud and Abuse Act. Plaintiff claimed that defendant had removed proprietary information from his company-provided laptop in connection with his November 2003 departure, and then used that information after he began working for a competitor (“Southeast”). Plaintiff sought an order compelling defendant to produce a laptop provided to defendant by Southeast in December 2005 or January 2006 and a personal computer hard drive which defendant kept at his residence. Plaintiff argued that the computers were likely to have evidence of defendant’s alleged violation of the CFAA as the computers were the most likely places where he would have downloaded, pasted, transmitted, or otherwise deposited the alleged pilfered computer data.
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Potential Objects of Evidence Must Be in Party’s Possession, Custody, or Control for Any Duty to Preserve to Attach

Phillips v. Netblue, Inc., 2007 WL 174459 (N.D. Cal. Jan. 22, 2007)

In this action involving alleged violations of the Controlling the Assault of Non-Solicited Pornographic and Marketing (“CAN-SPAM”) Act of 2003, defendants moved for dismissal based upon plaintiff’s alleged failure to preserve evidence.  United States District Judge Samuel Conti started by explaining the nature of the evidence at issue:

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Inadequate Legal Hold Measures, and Resulting Spoliation, Warrant Sanctions

In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007)

 

In this opinion, Magistrate Judge Andrew J. Peck granted plaintiffs’ motion for sanctions in the form of an adverse inference instruction and awarded plaintiffs their costs and attorneys’ fees incurred in connection with the sanctions motion and the additional discovery costs caused by defendant NTL Europe’s conduct.

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Government’s Negligent Failure to Preserve Evidence Did Not Warrant Dismissal

Miller v. Holzmann, 2007 WL 172327 (D.D.C. Jan. 17, 2007)

In this decision, Magistrate Judge John H. Facciola recommended that defense motions for dismissal as a sanction for the government’s alleged discovery abuses be denied. One event that was cited as partial support for the motions was the destruction of a government file in accordance with the pertinent National Archives and Administration Act schedule. The file contained a complete copy of materials that had been gathered in response to a related FOIA request, including materials that were exempt from production under FOIA. The employee who destroyed the file explained that she was not aware that the lawsuit or any other litigation was pending and that she would not have destroyed the file had she known it was.
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MDL Case Management Order Addresses Various E-Discovery Issues

In re Seroquel Prods. Liab. Litig., 2007 WL 219989 (M.D. Fla. Jan. 26, 2007)

In this opinion, the district court adopted the report and recommendations of the magistrate judge relating to the parties’ joint motion for entry of case management orders. The modified case management order entered by the court contained a number of provisions relating to electronic discovery, including one that allowed plaintiffs to conduct information interviews of knowledgeable AstraZeneca-employed IT persons about some 14 categories of databases and how information could potentially be produced or extracted from them. One of the categories included databases of “instant message, voicemail, discussion forum and prior website page databases, transcripts and recovery.”
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Court Denies Access to Hard Drives as Unwarranted “Fishing Expedition”

Balfour Beatty Rail, Inc. v. Vaccarello, 2007 WL 169628 (M.D. Fla. Jan. 18, 2007)

Plaintiff sued two former employees who left to form a competing business (“ARS”), alleging among other things that defendants undertook to cover up their actions by destroying information stored on plaintiff’s computers. In discovery, plaintiff sought and moved to compel the hard drive of any computer used by the defendants for ARS or Balfour Beatty business purposes at any time during 2005 and 2006. The defendants objected on confidentiality grounds to producing the hard drives used for ARS and stated that they did not have the hard drive they used for Balfour Beatty business. Plaintiff argued that the parties’ protective order should provide sufficient protection to any confidential information, and that defendants’ objections based on confidentiality should be disregarded.
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Court Sets Hearing on Plaintiffs’ Proposed Email Search Protocol and Requests Additional Information

Apsley v. Boeing Co., 2007 WL 163201 (D. Kan. Jan. 18, 2007)

In this employment discrimination case, plaintiffs moved to compel further responses and production of information from the defendants, and also asked the court to rule on plaintiffs’ email search protocol. Plaintiffs sought to compel Boeing and defendant Spirit Aerosystems to produce emails under the following criteria:
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