Archive: October 2008

1
Court Allows Subpoena Seeking Inspection of Plaintiff’s Mother’s Laptop, but Orders Defendant to Prepare Search Protocol and Pay Her Reasonable Costs
2
Court Orders Forensic Examination of Defendants’ Business and Home Computers, Articulating 20-Step Protocol
3
Court Orders Party to Explain How Documents Produced in Digital Format Were Ordinarily Maintained
4
Supreme Court of Ohio Adopts E-Discovery Amendments to Rules of Civil Procedure
5
Governor Vetoes E-Discovery Amendments to California’s Civil Discovery Act
6
Court Denies Relief Where Party Ignored Court’s Suggestions for Reducing Volume of ESI Captured by Keyword Search: “Defendants Must Now Lie in the Bed that They Have Made”
7
United States Court of Federal Claims

Court Allows Subpoena Seeking Inspection of Plaintiff’s Mother’s Laptop, but Orders Defendant to Prepare Search Protocol and Pay Her Reasonable Costs

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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Court Orders Forensic Examination of Defendants’ Business and Home Computers, Articulating 20-Step Protocol

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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Court Orders Party to Explain How Documents Produced in Digital Format Were Ordinarily Maintained

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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Supreme Court of Ohio Adopts E-Discovery Amendments to Rules of Civil Procedure

The Supreme Court of Ohio has adopted several amendments to the Ohio Rules of Civil Procedure, including several related to electronic discovery.  The amendments, which took effect on July 1, 2008, include changes to Rules 16, 26, 33, 34, 37, and 45.  According to the Supreme Court’s press release, key amendments include:

clarifying that issues related to electronically stored information are appropriate topics for resolution during pretrial conferences; clarifying that discovery of electronically stored information is permitted; amending to provide factors a judge should consider in determining sanctions when a party has destroyed potentially relevant electronically stored information; and specifying that a subpoena may be used to obtain electronically stored information from nonparties.

View Ohio’s amended rules here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

Governor Vetoes E-Discovery Amendments to California’s Civil Discovery Act

On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California’s Civil Discovery Act .  In his veto message, the Governor explained:

The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session.  Given the delay, I am only signing bills that are the highest priority for California.  This bill does not meet that standard and I cannot sign it at this time.

The amendments included in AB 926 closely tracked several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  Among other things, the amendments:

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Court Denies Relief Where Party Ignored Court’s Suggestions for Reducing Volume of ESI Captured by Keyword Search: “Defendants Must Now Lie in the Bed that They Have Made”

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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