Archive: December 1, 2004

1
United States v. IBM, 76 F.R.D. 97 (S.D.N.Y. 1977)
2
Uniroyal Chem. Co. Inc. v. Syngenta Crop Protection, 224 F.R.D. 53 (D. Conn. 2004)
3
Uncle Henry’s Inc. v. Plaut Consulting, Inc., 2002 WL 31833139 (D. Me. Dec. 17, 2002)
4
In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000)
5
TPS, Inc. v. U.S. Dept. of Defense, 330 F.3d 1191 (9th Cir. 2003)
6
Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio 1996)
7
Toftely v. Qwest Communications Corp., 2003 WL 1908022 (Minn. Ct. App. Apr. 22, 2003) (Unpublished)
8
Timpken Co. v. United States, 659 F. Supp. 239 (Ct. Int’l Trade 1987)
9
Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)
10
3M v. Pribyl, 259 F.3d 587, 606 n.5 (7th Cir. 2001)

United States v. IBM, 76 F.R.D. 97 (S.D.N.Y. 1977)

Key Insight: Defendant required to produce computerized information; conduct of defendant and technical and complex nature of production warranted appointment of examiner pursuant to Fed. R. Civ. P. 53 to report to the court what materials the defendant possesses and whether defendant produced such material

Nature of Case: Antitrust

Electronic Data Involved: Tapes, files, programs, reports, input and output files

Uniroyal Chem. Co. Inc. v. Syngenta Crop Protection, 224 F.R.D. 53 (D. Conn. 2004)

Key Insight: Where plaintiff demonstrated that allowing defendant unrestricted access to database would result in a clearly defined and serious injury, court held that plaintiff’s “confidential – attorneys’ eyes only” designation was appropriate and denied motion to compel

Nature of Case: Contract dispute

Electronic Data Involved: Database containing research data

Uncle Henry’s Inc. v. Plaut Consulting, Inc., 2002 WL 31833139 (D. Me. Dec. 17, 2002)

Key Insight: Court rejected plaintiff’s motion to reconsider recommended decision on summary judgment and motion to supplement the record with additional electronic materials (including email) obtained from belatedly produced zip disk, since plaintiff failed to seek a continuance under Rule 56(f) and proffer came two months after receipt of electronic media and was therefore tardy

Nature of Case: Contract dispute

Electronic Data Involved: Electronic documents and email stored on “zip” disk

In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000)

Key Insight: Plaintiffs allowed to serve appropriately-worded subpoenas on certain third parties for limited purpose of giving notice of action and placing them under duty to preserve relevant evidence

Nature of Case: Securities fraud

Electronic Data Involved: Unspecified electronic data of third parties

TPS, Inc. v. U.S. Dept. of Defense, 330 F.3d 1191 (9th Cir. 2003)

Key Insight: Reversing summary judgment for DOD, court stated that relevant inquiry as to whether an agency must provide information in requested format is whether, in general, a requested format is one that is “readily reproducible” by the agency, benchmarked against the agency’s “normal business as usual approach” with respect to reproducing data in the ordinary course of the agency’s business (not limited solely to the context of FOIA requests)

Nature of Case: FOIA action

Electronic Data Involved: Two electronic files in “zipped” format

Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio 1996)

Key Insight: Requiring insurer to create programs to retrieve and put in usable form information from its databases at its own expense, court stated: “[A] party cannot avoid discovery when its own recordkeeping system makes discovery burdensome. If a party chooses to store information in a manner that tends to conceal rather than reveal, that party bears the burden of putting the information in a format useable by others.” However, court did order that request for computer-generated reports be narrowed.

Nature of Case: Minority homeowners brought civil rights action alleging that insurer engaged in redlining to avoid minority neighborhoods

Electronic Data Involved: Insurer’s databases and computer-generated reports

Toftely v. Qwest Communications Corp., 2003 WL 1908022 (Minn. Ct. App. Apr. 22, 2003) (Unpublished)

Key Insight: Qwest general counsel sent urgent/confidential email to managers notifying them of “legal hold” related to pending SEC investigation and advising about the need to preserve certain categories of documents. The email contained a hidden “tracer” that gave notice whenever someone forwarded the email outside the Qwest network. Qwest discharged all employees who forwarded the email to outsiders on grounds of employment misconduct; subsequent denial of unemployment benefits was affirmed.

Nature of Case: Discharged employee appealed denial of unemployment benefits

Electronic Data Involved: Email containing tracer

Timpken Co. v. United States, 659 F. Supp. 239 (Ct. Int’l Trade 1987)

Key Insight: Defendant ordered to provide copies of computer tapes containing data previously provided in hard copy form

Nature of Case: Challenge of decision by Dept. of Commerce to deny plaintiff access to computer tapes in trade investigation

Electronic Data Involved: Computer tapes containing costs and sales data

Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)

Key Insight: Email stored in government computers does not automatically become public records by virtue of that storage; private or personal email fell outside the statutory definition of “public records”

Nature of Case: Newspaper sued city to release as public record all email sent from or received by two city employees

Electronic Data Involved: Email

3M v. Pribyl, 259 F.3d 587, 606 n.5 (7th Cir. 2001)

Key Insight: Negative inference instruction warranted where six gigabytes of music were downloaded onto hard drive the night before the computer was to be turned over for inspection

Nature of Case: Manufacturer sued former employees and their new competing company for misappropriation of trade secrets

Electronic Data Involved: Hard drive

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