January 9, 2009 – Electronic Discovery Law

“Since Both Parties Went Through the Same Stop Sign…They Both Should Pay for the Crash”: Court Orders Parties to Split Cost of Privilege Review

Jan 09 2009

Covad Comm. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008)

In this case arising from claims of misappropriation and conversion of trade secret information, plaintiff filed a motion to compel following a disagreement regarding the proper format of production of electronically stored information. The defendant argued that because the plaintiff failed to specify a format of production, hard copy or .TIFF images were appropriate. The plaintiff insisted on production in native format. The court, indicating its displeasure with both parties, ordered production of the documents in their native format, but ordered the parties to split the cost of the necessary privilege review.

Despite Document Retention Policy Allowing Individual Determination for Need to Preserve, Court Orders Board to Bear Recovery Cost of Deleted Emails in Response To Records Request

Jan 09 2009

State ex rel. Toledo Blade Co. v. Seneca County Bd. Of Comm’rs, 899 N.E.2d 961 (Ohio 2008)

This case arose from plaintiff’s request to review “all outgoing and incoming emails” of several Seneca County Commissioners following the board’s approval of plan that called for the demolition of the courthouse. Plaintiff alleged that the county’s production was deficient and cited a lack of emails from a particular time frame as well as alleged admissions by particular commissioners that they had deleted relevant messages.

Following these allegations, the board discovered additional emails for production and subsequently undertook a search in “every single folder in the hard drives of the computers of every person from whom emails were requested” and produced all responsive documents. The board did not undertake efforts to recover deleted messages, however, arguing that “while it may be possible to retrieve additional information from a hard drive with very expensive forensic tools, that information would be considered deleted by the user and would not be available to the user.” At all relevant times, the board maintained a schedule for records retention that allowed for the deletion of email deemed to have “no significant value.” The determination of “value” was left to each individual “computer user” pursuant to that policy.

Archive - January 9, 2009