Archive: July 2, 2007

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Court Selects Search Terms and Sets Out Detailed Electronic Discovery Protocol in Light of Parties’ Inability to Collaborate
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“Willful Indifference” to Preservation Obligations Warrants Evidentiary and Monetary Sanctions

Court Selects Search Terms and Sets Out Detailed Electronic Discovery Protocol in Light of Parties’ Inability to Collaborate

Williams v. Taser Int’l, Inc., 2007 WL 1630875 (N.D. Ga. June 4, 2007)

The court in this wrongful death case had previously held a hearing on outstanding discovery issues, and had directed each party to submit a proposed protocol to govern electronic discovery in the case.  Based on the parties’ filings, their representations during the hearing, as well as their submissions of electronic discovery protocols, the court entered this order resolving a variety of discovery disputes.

On the subject of electronic discovery, the court noted that a number of issues had arisen with respect to Taser’s search of electronic databases of internal communications.  In particular, the parties substantially disagreed about the manner in which the searches for responsive documents contained within these databases were to be performed.  The disagreement focused in large part on the timing of that production, the specific search terms to be used, and the extent to which plaintiffs would be allowed to participate in the search process.

Plaintiffs, for their part, requested that they be permitted to actively participate in the search process at the Taser facility.  Under plaintiffs’ proposal, Taser would make a computer with multiple screens available at its facilities, where plaintiffs’ counsel would appear and provide search requests to the Taser representative actually performing the database searches.  The results of each of plaintiffs’ requested searches would be immediately reviewed for privilege, and plaintiffs would then be provided access to any documents returned and to which no privilege objection was asserted.

Defendants adamantly opposed plaintiffs’ proposal, contending that plaintiffs’ counsel need not be present at Taser’s facilities, that their presence would both substantially hinder Taser’s ongoing business activities and risk the disclosure of privileged information.  Taser instead proposed that search terms be exchanged between the parties by email.  Taser would then perform the searches using the stated terms, and report the number of documents retrieved to plaintiffs, who would then have the opportunity to either accept the search or propose different search terms.  If both parties accepted a given search, Taser would then review the documents produced for privilege and produce all responsive, non-privileged documents.  If, however, the parties disputed whether a given search was acceptable, then either could apply to the court for review, and all searches would cease until the court rendered a decision. Read More

“Willful Indifference” to Preservation Obligations Warrants Evidentiary and Monetary Sanctions

Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2007 WL 1848665 (N.D. Cal. June 27, 2007)

In this trademark litigation, Google sought terminating, evidentiary, or monetary sanctions based on the alleged failure of defendant American Blind to preserve, collect, and produce evidence.  Google’s motion was premised on two types of alleged misconduct:  First, Google contended that American Blind made inadequate efforts to preserve, collect, and produce relevant evidence.  Second, Google contended that in May of 2006, American Blind’s founder and CEO, Steve Katzman, intentionally destroyed evidence when he “voluntarily resigned” from his position and erased electronic data from certain computers.

Google served American Blind with summons and the complaint in this action seeking declaratory relief in December of 2003.  The presiding judge had previously ruled that a justiciable controversy arose between the parties no later June of 2002, when counsel for American Blind sent Google a “cease and desist” letter that portended litigation.  Thus, the court found that American Blind’s duty to preserve relevant evidence arose no later than December of 2003, and likely arose some eighteen months earlier. American Blind did not argue to the contrary.

With respect to the first basis for the motion, Google made a factual showing that: Read More

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