Key Insight: Petition for Mandamus granted and order to produce privileged emails vacated where appellate court found that defendants? claim of attorney-client privilege had not been waived because defendants had not claimed reliance upon privileged advice as a defense and thus had had not put the advice ?at issue?
Nature of Case: Class action challenging constitutionality of strip- search policy
Electronic Data Involved: Emails
Key Insight: Court declined to order preliminary injunction requiring defendants to image hard drives for production and to produce copies of all electronic files related to the action where plaintiff alleged that defendants destroyed ESI on plaintiff?s server but did not state who deleted it or how, and where plaintiff failed to show the information was not available elsewhere or that ample protection was not provided by the preservation obligations under the Federal Rules or the rules of the American Arbitration Association
Nature of Case: Trademark infringement
Electronic Data Involved: ESI, hard drives
Key Insight: Court denied plaintiffs? request for additional round of pre-certification discovery on defendant?s process of preserving, locating and producing responsive documents, since some electronic documents had been produced and only basis for motion was general ?paucity? of defendant’s document production and ?theoretical possibility? that other electronic documents might exist
Nature of Case: Putative class action against Postmaster General by deaf postal employees
Electronic Data Involved: Unspecified electronic documents
Key Insight: Where plaintiff alleged that former supervisor wrote memos concerning plaintiff?s alleged deficiencies after plaintiff complained about co-employee?s racist comments, that she never saw the memos and did not sign them as was normal practice with disciplinary memos, and defendant had not preserved hard drive of supervisor?s computer, court did not grant adverse inference as to contents of hard drive but found a material question of fact as to plaintiff?s retaliation claim, and denied defendant’s motion for summary judgment on retaliation claim
Nature of Case: Wrongful termination and retaliation claims
Electronic Data Involved: Hard drive, metadata
Key Insight: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms
Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests
Electronic Data Involved: Hard copy and electronic files
Key Insight: Where court had earlier ruled that defendant could recover attorney fees and costs relating to motion to compel and forensic inspection of plaintiff?s computer servers, court denied defendant?s subsequent request for $944,902 in attorneys? fees and instead awarded $105,000 as reasonable amount of attorneys? fees incurred; court further ordered plaintiff to pay neutral computer expert only for fees directly related to forensic inspection and not for those related to defendant’s advocacy in the action
Nature of Case: Misappropriation of intellectual property
Electronic Data Involved: Computer servers
Key Insight: District judge upheld as neither clearly erroneous nor contrary to law magistrate judge?s order for forensic imaging of defendants’ computers, where defendants had refused to provide documents plaintiff requested, providing only “sample” appraisals, and where relevant appraisals and software used to generate appraisals resided in computer and were relevant to parties’ claims and defenses
Nature of Case: Fraud, RICO and breach of fiduciary duty claims
Electronic Data Involved: Appraisals and software used to generate appraisals
Key Insight: Court denied motion for adverse inference brought by plaintiff under FRCP 51 one week before bench trial and based on destruction and replacement of computers allegedly containing relevant emails, finding that plaintiff had waived right to seek adverse inference since plaintiff knew about alleged spoliation for over a year, had plenty of time to move for discovery sanctions or raise issue in final pretrial order, and offered no explanation for delay in bringing matter to court?s attention
Nature of Case: Plaintiff alleged fraudulent transfer of assets
Electronic Data Involved: Emails, discarded computers
Key Insight: Ruling on parties? cross-motions regarding production of various types of ESI sought by plaintiffs, court denied motion to compel source code given its value and secrecy and plaintiff?s failure to make proper preliminary showing justifying production; court further denied motion to compel production of schema for Google?s advertising database, but granted motion to compel as to data from YouTube logging database and schema for Google Video Content database
Nature of Case: Copyright infringement
Electronic Data Involved: Databases, computer source code which controls both the YouTube.com search function and Google’s internet search tool ?Google.com? and source code for YouTube’s ?Video ID? program
Key Insight: Where plaintiffs made prima facie showing of infringement, there was no other way to identify Doe defendant, and there was risk that ISP would destroy its logs prior to Rule 26(f) conference, court found that need for expedited discovery outweighed prejudice to defendant and granted plaintiffs? motion for leave to take immediate discovery
Nature of Case: Copyright infringement through use of peer-to-peer (“P2P”) networking
Electronic Data Involved: ISP logs; documents and ESI sufficient to identify defendant’s true name, current and permanent addresses and telephone numbers, email addresses, and Media Access Control addresses
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