Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

Qualcomm Inc. v. Broadcomm Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008)

At trial in this case, Broadcomm made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications.  Qualcomm’s claimed lack of participation in the JVT was a core element of its claims for patent infringement against Broadcomm.  Judge Brewster referred the discovery aspects of that motion to Magistrate Judge Major and then issued an Order on Remedy for Finding of Waiver based on his determination that Qualcomm’s attorneys had participated in a sequence of discovery misconduct throughout the litigation process.  However, because those attorneys had not had an opportunity to be heard before the order was issued impugning their behavior and in order to afford them an opportunity to be heard on the potential imposition of attorney sanctions, the court issued an Order to Show Cause Why Sanctions Should not be Imposed.

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Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008)

In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production.  Plaintiff identified and provided the key words to the defendant.

The first key words list contained 120 terms.  After efforts to ensure the search would be productive, including converting certain files to a different format, Abercrombie ran the search. There were many hits.  To reduce the volume, plaintiffs crafted a revised list of 123 terms.  Another search was run and when the results came in, the parties agreed that some data sets from among the results would be reviewed and produced.  Abercrombie produced those documents.  The parties also agreed that further refinements of the search would be necessary to cut down the remaining results.  Accordingly, plaintiff’s counsel sent 6 additional terms to Abercrombie to be run in proximity to other specified terms. 

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D’Onofrio v. SFX Sports Group, Inc., 2008 WL 4737202 (D.D.C. Oct. 29, 2008)

In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery.  Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested.  At the hearing, a representative of the defendants explained that plaintiff’s computer was “scrapped after he decided that it could not be used and also searched for items requested by plaintiff.”  A representative also testified regarding additional searches performed to respond to plaintiff’s requests and explained the “Legato system,” a server which held a back up of plaintiff’s mailbox from 2004, made under order of the Justice Department in a separate matter.  Defendants agreed to allow plaintiff’s expert to perform an in-person search of their servers, but the parties were unable to agree upon a protocol to guide that search.

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Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008)

In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions.  Specifically, plaintiffs alleged egregious spoliation of defendant Klein’s laptop.  Suspicion of spoliation initially arose when Klein resisted the court’s order to allow his laptop and other computers to be copied, and was later exacerbated because when the laptop was finally produced it was “hot to the touch and a screw was missing from its hard drive enclosure.”  In light of these facts, the court appointed a forensic expert to examine the evidence for spoliation and provide a detailed report.

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Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008)

In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests.  One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement.  Under the agreement, Metavante was to provide Emigrant with an online direct banking product called EmigrantDirect.

Emigrant argued that access to the source code may provide information about the quality of the product and was therefore relevant and properly discoverable.  Metavante argued that its production would be unduly burdensome because it would cost over $300,000 and take over 5,000 hours to produce.  Metavante also argued that the code would provide little relevant information.  Emigrant responded arguing that Metavante’s estimates assumed a need to sort and compile all of the information before disclosing it and suggested it could mitigate the cost to Metavante by providing the code to outside consultants for inspection and a determination regarding relevance.  The court found that the source code was relevant and, citing Emigrant’s offer to use outside consultants, found that “[i]n balancing the value of the source code against the burden of producing it…the potential value outweighs the burden.”  The court also noted that any confidentiality concerns were addressed by its previously issued protective order.

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Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008)

In this defamation case, plaintiffs sought an order allowing expedited discovery.  Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc., an Internet service provider and non-party to the action, for information related to the claims in the case and the potential identification of Doe Defendants.  Plaintiffs also sought an order allowing them to take images of the hard drives of any computer owned or used by the named defendants for the preservation of electronically stored information related to the claims in the case and the potential identification of Doe Defendants.

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Containment Tech. Group, Inc. v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008)

In this defamation case, the parties disagreed over the scope of a protective order sought by plaintiff prior to production of proprietary information, among other things.  The parties attempted to negotiate the terms of such an order, but could not agree on several issues, including whether only portions of documents should be designated as “confidential” if the entire document did not rise to that level.  Under the parties’ proposed terms, materials designated “confidential” would have automatically been sealed if filed with the court.

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Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008)

In this employment case, plaintiffs filed several motions to compel supplemental responses to their extensive discovery requests after defendants allegedly failed to adequately respond.  The case was eventually referred to Chief United States Magistrate Judge Paul Grimm for the purpose of resolving all of the discovery disputes.

In the initial review of defendants’ objections to the requests, the court noted “an obvious violation” of Federal Rule 33(b)(4) and “facially apparent violations” of Federal Rule 33(b)(2) which require that objections to interrogatories and requests for production be laid out with specificity or else they are waived.  Moreover, the court suggested that the defendants’ failure to be particular in their objections “suggested a probable violation” of Federal Rule 26(g)(1) which requires a reasonable inquiry prior to objecting to an interrogatory or document request.  Accordingly, the court scheduled a hearing to address the issues.

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Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008)

In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence.  Specifically, the plaintiff alleged that the government had destroyed relevant materials related to his detention, including recordings, and that the government had no uniform policy for preserving detainee interrogation recordings.   Therefore, a preservation order was necessary to prevent further spoliation.  The government maintained that such an order was unwarranted in light of the multiple preservation directives issued to ensure that evidence related to the plaintiff was preserved.

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Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication)

In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions and sought an adverse inference in its favor.  Specifically, plaintiff alleged spoliation of the contents of the defendants’ website as it existed at the time the dispute between the parties arose, and of a particular letter from the Bank of New York.

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In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008)

In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner.  In July of 2000, the debtor contracted with MBP to handle the debtor’s billing.  In February 2008, the debtor stopped doing business with MBP and started using Practice Resources Network, Inc. (PRN).  After switching, the debtor requested that MBP provide the debtor with a copy of its billing data so the debtor could determine the status of its claims. MBP refused.  Soon after filing for bankruptcy in March 2008, the debtor filed an expedited motion seeking copies of this data from MBP.  MBP objected and filed a motion for a protective order.

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Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D. La. 2008)

In this breach of contract case, Hoover moved to quash subpoenas issued by defendant to two non-parties:  Hoover’s mother and Hoover’s former roommate. The subpoena issued to Hoover’s mother requested inspection of her laptop or any electronic storage device “for documents copied, sent to, or received by her son” related to several entities, including the defendant.  The subpoena issued to the former roommate, Sanghani, also sought inspection of his laptop computer and any other electronic storage device or computer “that has any responsive documents.”  The subpoena further requested documents, “whether in paper form or electronically submitted,” between Hoover and Sanghani that referred to specific persons or topics.

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Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008)

In this breach of contract case, plaintiffs alleged that defendants wrongfully obtained and used confidential information from former employee, Kenneth Fuston, who went to work for the defendants.  Specifically, plaintiffs alleged that defendants used the information to hire approximately 20 of plaintiffs’ employees, open new offices in eight cities, and embark upon a new line of business in competition with plaintiffs.  Plaintiffs moved to compel production of computers believed to contain information related to those claims.  The court had previously granted a motion to compel and ordered defendants to produce emails to or from any current or former employee or customer of the plaintiff found on Fuston’s home computer and documents reflecting communication with the defendant and certain former employees of the plaintiff. Defendants produced 1,936 pages of email.  Believing the production was incomplete, plaintiffs brought a second motion to compel. 

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Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008)

In this patent infringement case, the court addressed the issue of whether, in response to 72 separate document requests, the plaintiff's production in digital format of 405,367 pages of documents, apportioned among 202 unlabeled folders and which through application of litigation support software could be made text searchable, but was otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they were maintained in the ordinary course of plaintiff's business, satisfied the responding party's obligations under Rule 34 of the Federal Rules of Civil Procedure.  Plaintiff asserted that, pursuant to FRCP 34, it had produced the documents in the manner in which they were maintained in the ordinary course of business and therefore need not indicate to which request the documents were responsive.  In support of its position, plaintiff offered only the statement of an attorney indicating that the documents had been assembled as they had been maintained.

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Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008)

In this case, Onex presented several motions to the court, including a motion for a protective order and for relief from the need to produce all documents identified after searching several backup tapes.  The court denied in part and granted in part Onex’s motion, and ordered Onex to produce all identified documents, except for two specific categories deemed unlikely to contain relevant information.

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Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008)

In this breach of contract litigation over allegedly non-conforming goods, Glasforms moved for sanctions against third-party defendant Taishan Fiberglass for the spoliation and destruction of documents.  Taishan had previously been ordered to produce a knowledgeable and fully prepared witness or witnesses to testify about ten topics not adequately addressed in the prior Rule 30(b)(6) deposition.  In addition, Taishan was ordered to search for and produce all documents responsive to Glasform’s requests for production, including relevant internal email communications. 

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Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 2008 WL 4291319 (Pa. Super. Sept. 22, 2008)

In this case involving breach of fiduciary duty and related claims, plaintiff had requested the production of certain email and documents maintained on the computers of two individual defendants.  When defendants failed to produce the requested material, plaintiff moved to compel. At the hearing on the motion, defense counsel informed the court that the two computers were inoperable and that technicians were currently working on the computers.  The court pressed defense counsel for an explanation of how the computers were broken, and observed that plaintiff was entitled to the information that had been requested.  When the court asked defense counsel what order it should enter, defense counsel responded:  “We can produce the computers.”  After the court entered its order, defendants appealed.

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Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008)

In this case involving the alleged breach of a performance bond, the court considered plaintiff’s motion to compel and for sanctions.  Among other things, plaintiff requested that defendant be ordered to re-produce, in native format, documents previously produced as TIFF images.  The court granted only that portion of the motion, and gave the defendant three options for its re-production:  (1) provide any documents previously supplied as TIFF images in their native format, (2) provide the documents in another comparably searchable format, or (3) supply plaintiff with software for searching the TIFF images.

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Babaev v. Grossman, 2008 WL 4185703 (E.D.N.Y. Sept. 8, 2008)

In this case, plaintiffs claimed that they were fraudulently induced to invest in defendant’s catering businesses, and sought to inspect defendants’ business records.  Plaintiffs moved for an extension of time to complete their inspection, and also requested sanctions.  They claimed that defendants had engaged in spoliation of evidence and willful refusal to produce documents, and also noted defendants' “belated” claim that their computer had been lost or misplaced and that many reports and records were unavailable for that reason.  Defendants argued that the “lost” computer had been kept at defendant’s prior place of work, and that when it was retrieved the files had been corrupted and could not be accessed.  Defendants asserted that the computer had been discarded prior to the lawsuit.

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Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008)

In this patent infringement litigation, BNY sought sanctions on the grounds that Metrokane failed to produce a series of emails said to be highly damaging to Metrokane's case.  BNY argued that the recent discovery of the existence of these emails through production by a non-party came too late to permit BNY to pursue otherwise crucial discovery concerning these communications.  Metrokane contended that BNY failed to comply with various procedural requirements before filing the motion, and that it had not demonstrated any misconduct by Metrokane or any prejudice.  Magistrate Judge Michael H. Dolinger rejected Metrokane’s procedural defense, and concluded that BNY sufficiently demonstrated discovery misconduct by Metrokane and resulting prejudice.  Accordingly, the court granted a variety of remedies, including an adverse inference instruction.

Discovery in the case closed in June 2007, but disputes about Metrokane’s performance let to additional motion practice, including the enforcement of a deposition subpoena to the alleged designer of the infringing handbags (Mr. Kilduff).  The court granted BNY’s motion to compel the deposition of Mr. Kilduff in October 2007, and his deposition and production of documents occurred in November 2007.

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Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. Sept. 2, 2008)

In this class action securities litigation, plaintiffs sought sanctions based on alleged evidence spoliation by defendants.  Plaintiffs moved for terminating sanctions or, in the alternative, for lesser sanctions in the form of adverse inference instructions and an order precluding defendants from relying on spoliated evidence.  Plaintiffs submitted a long list of actions allegedly taken by defendants that led to the failure to preserve or the affirmative destruction of evidence relevant to this lawsuit.

District Judge Susan Illston declined to impose terminating sanctions because the actions alleged to have been taken by defendants did not “eclipse entirely the possibility of a just result.”  The court found that plaintiffs had not demonstrated the degree of prejudice necessary to warrant terminating sanctions, primarily because plaintiffs had received a large quantity of materials in discovery.  In addition, the court noted that public policy strongly favored deciding the case on its merits, and that less drastic sanctions could be imposed that would permit a decision on the merits while also ensuring that defendants did not benefit from any spoliation.

As to lesser sanctions, the court found that adverse inferences in plaintiffs' favor were warranted with regard to some categories of evidence that defendants had conceded was not produced or preserved.

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Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008)

In this breach of employment agreement and misappropriation of trade secrets case, plaintiff moved to compel production of emails from defendant’s personal Yahoo! account.  Plaintiff contended that it only recently learned of the account, and that defendant should have disclosed the account in response to an earlier discovery request.  Plaintiff argued that emails from the account contained highly relevant information crucial to the issues in the case.

Although defendant claimed he could not produce the emails because they had been destroyed by Yahoo!, he offered only a copy of a generic response from Yahoo! about deactivating accounts.  The court observed that Yahoo! may have a process for obtaining emails from deactivated accounts, and declined to accept defendant’s explanation that production was “impossible,” particularly given the important evidentiary value of the emails and the “feeble offering” by defendant in support of the contention.

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Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D. Ariz. Aug. 29, 2008)

In this copyright infringement litigation, seven major recording companies alleged that defendant Howell had used the KaZaA file-sharing program to download their sound recordings and distribute them to other users of the network.  Howell had previously resisted plaintiffs’ efforts to conduct a forensic examination of his computer hard drive, and the court had granted plaintiffs’ motion to compel and granted leave to take additional discovery.  With the benefit of this additional discovery, plaintiffs moved for terminating sanctions based on Howell's willful spoliation of material evidence.

Based on the evidence presented, the court found that:

•  Defendant removed the KaZaA program from his computer and deleted the contents of the shared folder shortly after receiving notice of the lawsuit

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Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008)

In an earlier decision in this case, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of text messages.  The court found that plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel.  The court observed that the relevance (and hence discoverability) of the text messages necessarily turned upon the content of the communications.  Thus, it was essential to establish a procedure for the review of the content of each such communication, for determining both relevance and the application of any privilege.  The court appointed two magistrate judges to review the communications and make the initial determination as to which were discoverable.  Our post on that March 20, 2008 order is available here.

In this recent decision, the court ruled upon motions by the City and one of the individual defendants seeking to prevent the discovery from going forward.  The moving defendants argued that the federal Stored Communications Act (“SCA”), 18 U.S .C. § 2701 et seq., wholly precludes the production in civil litigation of electronic communications stored by a non-party service provider.  The court rejected this proposed reading of the SCA, observing that “[d]efendants’ position, if accepted, would dramatically alter discovery practice, in a manner clearly not contemplated by the existing rules or law, by permitting a party to defeat the production of electronically stored information created by that party and still within its control – information that plainly is subject to civil discovery, see Fed. R. Civ. P. 34(a)(1) – through the simple expedient of storing it with a third party.”  The court concluded that, because nothing in the plain language of the SCA requires this extraordinary result, and because defendants had not identified any other support for this proposition, the discovery effort contemplated in its March 20, 2008 opinion could go forward (albeit through slightly different means).

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Keithley v. Home Store.com, Inc., 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008)

In this patent infringement case, plaintiffs sought terminating, evidentiary and monetary sanctions based upon defendants' spoliation of evidence.  Plaintiffs argued that defendants had destroyed three types of evidence:  (1) source code; (2) early architectural, design and implementation documents; and (3) reports.  Plaintiffs contended that the spoliation of these materials impacted plaintiffs' ability to meet their burden of proving infringement.

The court held several hearings and received extensive briefing on the spoliation issue, which the court observed “became a moving target because of Defendants' belated production of evidence that it had previously stated was either nonexistent or destroyed.”  In the end, the magistrate judge imposed a monetary sanction of fees and costs associated with defendants' discovery misconduct, and recommended that the district court give an adverse inference jury instruction to address the spoliation that occurred.  Although the magistrate judge found that the discovery misconduct by defendants in the case was "among the most egregious" the court had seen, she declined to recommend terminating sanctions because there was no evidence that defendants engaged in deliberate spoliation, and because the extreme sanction of dismissal would go beyond what was necessary to cure the prejudice to plaintiffs.

Some examples of defendants’ “reckless and egregious discovery misconduct” include the following:

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Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008)

In this case, plaintiff alleged that UPS fired him because of his age (reportedly, he was about 44 years old at the time).  UPS contended that Gippetti's termination had nothing to do with his age.  It maintained that he was fired for “stealing time” (i.e., sleeping on the job during periods he claimed to be working, taking excessive rest breaks and inaccurately recording meal and rest breaks) and because he did not properly complete truck safety inspections required by UPS and government regulations.

In discovery, plaintiff sought production of “tachograph records,” which were records that showed a vehicle's speed and the length of time it is moving or stationary.  UPS produced tachographs from 2007 and 2008, and agreed to produce the records on an ongoing basis.  However, UPS stated it was not able to locate any other responsive tachographs because its practice is, and since 2002 has been, to preserve such records for only 37 days due to the large volume of the data.

Plaintiff moved for spoliation sanctions, arguing that the destroyed tachograph records “would support that Plaintiff did not drive Route SU09 any differently than employees who were under the age of 40 years old.”  UPS responded that, until recently in this litigation, it had no reason to believe that all tachographs had any bearing on plaintiff's age discrimination claim before those records were destroyed years ago in accordance with the company's retention policy.

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In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008)

In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions.  The court rejected defendants’ argument that Rule 26(a)(2)(B) required that the plaintiffs' experts produce all drafts of their reports:

The Court is not convinced that the plain language of Rule 26(a)(2)(B) imposes an obligation on a party or its experts to preserve and produce drafts of an expert's report.  See, e.g., Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 142 n. 7 (3d Cir. 2001) (“The Supreme Court and this Court have repeatedly held that the Federal Rules of Civil Procedure, like any other statute, should be given their plain meaning.”).  The Rule does not expressly include draft opinions in the list of what the expert must disclose.  Instead, the Rule requires that an expert's report contain a list of the data and other information on which he relied.  Fed. R. Civ.P . 26(a)(2)(B).  It does not seem logical that the Rule would require the final report to include a list of all the drafts of that report.  Further, because most experts now draft their reports on the computer, adding to and subtracting from the document, it would be impractical to require the production of all drafts.  For example, any time an expert added or subtracted a section, a paragraph, a sentence or even a word, the Defendants' reading of the Rules would require the expert to save the draft and preserve it for production later.  This is a completely unworkable reading of the Rules and would mire the courts in battles over each draft of an expert's report.  The Court concludes that this interpretation comports with neither the plain meaning of the Rule nor its policy.

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Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008)

In this wage and hour employment case, plaintiff sought documents about class members' employment and salary history, terminations, performance evaluations, discipline, certain communications, and personnel files.  Rite Aid had demanded that plaintiff either travel to its various district office locations throughout California and copy the documents, or pay the copying expenses, which it estimated at $104,178.84.  The dispute was presented to the magistrate judge.  After weighing the factors set out in Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 322 (S.D.N.Y. 2003), the magistrate judge required Rite Aid to produce the documents at its own expense.

Rite Aid objected to the magistrate's ruling, arguing that Fed. R. Civ. Pro. 34 requires plaintiff, not Rite Aid, to bear the costs of photocopying.  The district judge agreed, concluding that the magistrate judge had “clearly erred” by analyzing the dispute under Zubulake:

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White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008)

In this wrongful termination case, plaintiff moved for an order compelling defendants to, among other things, provide complete information on defendants' document retention policy and how such policy may have affected ESI responsive to certain discovery requests, and re-produce certain electronic documents in their native format.  The court denied the former, but granted the latter request.

Information on Defendants’ Document Retention Policy

Plaintiff’s discovery requests had asked defendants to identify any computer or electronic devices used by its management or human resources department in the years 2003 or 2004, and whether the device had been search or analyzed to determine if any files, notes, or documents related to plaintiff were contained on the device.  Plaintiff also asked that defendants identify and produce any documents related to plaintiff found on the device.

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Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008)

In this case, plaintiff alleged that she slipped on drops of "a thick, pink liquid" while shopping at defendant supermarket, sustaining injuries to her left leg and ankle.  She sued for negligence, bodily injury, medical expenses, lost income and lost future earning capacity.  Defendant moved for summary judgment contending that it did not have notice of the spill which may have caused plaintiff’s injuries.  The trial court granted the motion, holding that, because plaintiff failed to provide any evidence that defendant knew or should have known about the substance on the floor, no reasonable jury could find that defendant had breached its duty to plaintiff as a matter of law.  Plaintiff appealed, and the Supreme Court of the Virgin Islands reversed and remanded, finding that there was a genuine issue of material fact as to constructive notice.

Plaintiff’s fall was captured on defendant’s closed-circuit video surveillance system, which was comprised of both a digital hard drive that records only a finite amount of data before reusing itself and a video recorder.  The digital footage was automatically recorded over every few weeks unless it is manually copied from the digital hard drive to the video recorder.  The supermarket’s manager testified that he examined the footage of plaintiff’s fall immediately after being notified of her fall, and the video failed to show anything visible on the floor at the time of the fall.  Concluding that plaintiff "probably tripped on herself," the manager testified that he elected not to review or copy any of the footage prior to or after the fall.  He also testified that the store had no set procedure for retaining video footage of slip and fall accidents and that the store simply retained the footage of the actual fall in plaintiff’s particular circumstance. Continue Reading...

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Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D. Wash. July 17, 2008)

In this trademark infringement case, Suarez moved to compel Earthwise to organize and correlate responsive documents and ESI to Suarez's 136 or more requests for production.  Earthwise had produced “55,000 emails, six boxes of documents consisting of approximately 8,700 pages in .pdf form as [Suarez] requested, and nine CDs of data in native format that contain hundreds-if not thousands-of individual files.”  Suarez claimed that Earthwise's production was essentially a “document dump” without any cognizable organization.

Rule 34(b)(2)(E) provides:

Producing the Documents or Electronically Stored Information.  Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i)  A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii)  If a request does not specify a form for producing electronically stored information, a party must produced it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii)  A party need not produce the same electronically stored information in more than one form.

There was no evidence that Suarez had requested that responsive ESI be produced in a specific form or that Earthwise had objected to that requested form, if any.  However, it was also unclear how Earthwise determined what documents were responsive to Suarez's requests.

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Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D. Pa. July 21, 2008)

In this case, plaintiffs had requested that they be allowed to search the defendants' backup tapes in an attempt to discover whether other complaints were made to the district about the teacher who was at the center of the case.  After examining the relevant case law, the court concluded that it lacked sufficient information on the process of recovering deleted emails, the time required to do so, and the potential costs of that recovery.  As a result, the court ordered defendants to supply the information and delayed a decision on plaintiffs' motion until it had the information.

Defendants complied with the court’s request, and provided the following information:

(1) the district already possessed the equipment necessary to gain access to materials preserved on the backup tapes;
(2) the cost of the search would be a minimum of $10,000;
(3) a week would be needed to rebuild and restore the e-mail program, and additional time would be needed to access the emails;
(4) there were easily millions of emails stored on the server, and a precise number could not be reported until the server was rebuilt; and
(5) once the emails were restored, they could be searched by date, recipient, sender, subject or keywords.

The court concluded that the burden and expense of rebuilding the district's email system in order to provide the requested discovery, along with the additional and less expensive means available for plaintiffs to get this material, made the plaintiffs' discovery request impractical.  Accordingly, the court denied plaintiffs' motion.

The court rejected plaintiffs’ offer to have their own expert search the tapes: 

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Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008)

In June 2007, the court had ordered, among other things, that defendant Globe Electric Supply Co. “submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe's sole expense and cost."  In November 2007, after finding Globe in contempt of court and considering that "the information at issue is important to the public health and safety in that the counterfeit circuit breakers represent a potential danger to unknowing consumers," the court again addressed the issue of the forensic inspection.  At that time, the court ordered Globe to:

submit to an inspection by Square D (including its attorneys), at Globe's expense, of its inventory of Square D circuit breakers as well as Globe's offices, warehouses, storage containers or facilities where Square D circuit breakers are or may be located, and also submit to a forensic inspection of its computer systems which records its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe's sole expense and cost.

The court further ordered that said inspection occur within thirty days, or on or before December 14, 2007.

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Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008)

In this breach of contract litigation, the court had previously granted plaintiff leave to amend its complaint to add a state law cause of action for spoliation of evidence based on defendant’s failure to implement a litigation hold.  Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 538 F. Supp. 2d 1032 (N.D. Ohio 2008).  In this decision, the court denied plaintiff’s motion for summary judgment on the spoliation claim, in light of genuine disputes over several material facts.

In an interesting passage, the court opines that liability for a state law spoliation of evidence cause of action does not result simply from the failure to implement a litigation hold: Continue Reading...

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Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008)

In this class action litigation, defendant moved, pursuant to Fed. R. Civ. P. 26(c), for an order requiring plaintiffs to pay at least 50 percent of its third party vendor electronic discovery costs.

The court first observed that the parties had entered a Stipulated Order for Discovery of Electronically Stored Information, which noted that the parties held several discussions regarding the possibility of limiting the scope and extent of discovery and that future agreements might be reached.  The Stipulated Order also reserved to the parties the right to petition the court to limit the scope and burden of discovery and to request that the opposing party share the costs.

The court then cited Fed. R. Civ. P. 26(b)(2)(B) and stated that, among the measures available to the court is the apportionment (or shifting) of costs between the requesting and the producing parties.  However, the court observed that defendant had not identified any form of ESI “as not reasonably accessible because of undue burden or cost,” nor did it file a motion for an order protecting it from the obligation of production.  Rather, defendant produced the information requested of it and sought, after the fact, an order imposing 50 percent of its costs upon plaintiffs.

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