Key Insight: Where requested source code was relevant or reasonably calculated to lead to discovery of admissible evidence and stipulated protective order was in place which addressed confidentiality concerns, court granted plaintiff?s motion to compel production of source code
Nature of Case: Patent infringement
Electronic Data Involved: Source code
Key Insight: Where neither party would be able to conclusively prove ownership of disputed technology without analysis of source code, court concluded that documents related to source code and other technology plaintiff claimed as trade secret were ?reasonably calculated to lead to the discovery of admissible evidence? and ordered plaintiff to produce responsive documents and ESI
Nature of Case: Copyright infringement, breach of fiduciary duty, fraud, conversion, breach of contract
Electronic Data Involved: Source code and related technology
Key Insight: Where defendant produced ESI as TIFF images and plaintiffs sought order compelling compliance with RFP instruction to ?produce documents in electronic form in the most accessible, searchable, maneuverable and common medium available to [defendant],? arguing that documents must be produced in native file format with metadata or in searchable OCR format, court declined to hold that 2005 Court of Chancery Rules required OCR format or native file format, including metadata, without a particularized showing of need; court found defendant?s proposal to provide searchable ?extracted text? was acceptable compromise and ordered production of ?extracted text? contingent on plaintiffs? agreement to reimburse all of defendant?s related expenses given plaintiffs? failure to timely object to non-searchable TIFF format
Nature of Case: Breach of contract, unjust enrichment
Electronic Data Involved: ESI
Key Insight: Court declined to compel compliance with subpoena seeking forensic image of third-party competitor?s computer where third party asserted it had no relevant documents on its computers, where an expert?s search confirmed that assertion and where plaintiff failed to establish third party?s possession of documents sought; regarding plaintiff?s claim that defendant?s search was incomplete where it did not include titles or phrases from documents not included in the complaint, court ordered meet and confer regarding supplemental search terms and for third party to allow forensic expert to conduct search
Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract
Electronic Data Involved: ESI, hard drive
Key Insight: Court granted plaintiffs? request for access to third party?s proprietary software where court determined software and its underlying processes were relevant to plaintiffs? claims and that all less intrusive means to obtain the necessary information had been exhausted; court?s order allowed access to the software by plaintiffs? expert but protected the confidentiality of the information with a protective order that placed limitations on who may access the software and limited the use of the information solely to the litigation
Nature of Case: Challenge to accuracy of insurance company estimates for fire damage
Electronic Data Involved: Proprietary software
Key Insight: Rejecting each of defendant?s objections, court adopted Report and Recommendation of Magistrate Judge imposing monetary sanctions for discovery violations but did not adopt recommendation for adverse inference instruction because summary judgment in favor of defendant rendered issue moot
Nature of Case: Patent infringement
Electronic Data Involved: ESI, source code, document retention policies
Key Insight: Appellate court found no abuse of discretion in trial court?s decision to admit surveillance footage of armed robbery into record after State provided testimony regarding chain of custody and where officer in charge of transferring data to DVD testified DVD contained exact replica of the original footage
Nature of Case: Capital murder
Electronic Data Involved: Surveillance footage
Key Insight: Noting that ?perfection in document production is not required?, court denied plaintiffs? motion for sanctions or additional discovery orders where defendants offered valid reasons for the non-production of some data, performed a thorough search of their systems for the requested information, and explained that there were no other sources to search and where the burden of production outweighed the likely benefit; court indicated that ?experts can extrapolate and estimate from available data in order to perform calculations and provide opinions.?
Electronic Data Involved: ESI
Key Insight: Deciding various motions in limine, court found that plaintiff had presented sufficient evidence relating to destruction of surveillance videotape to demonstrate that adverse inference instruction was not barred as a matter of law; court further granted plaintiff?s motion to re-open discovery for limited purpose of conducting focused three-hour deposition of particular individual who was most knowledgeable about defendant?s video surveillance system
Nature of Case: Lebanese nightclub patron brought civil rights action against municipality, police department, and certain employees and owners of nightclub
Electronic Data Involved: Surveillance videotape
Key Insight: Court denied plaintiffs? motions for preliminary injunction and for sanctions, where evidence that defendants had improperly accessed plaintiffs? computers was weak, evidence from forensic inspection of defendants? laptops was ambiguous, and ?most damning? piece of evidence was one defendant?s use of a drive cleaner on laptop after being served with summons and before laptop could be examined; court found that defendant’s proffered explanation for using the drive cleaner was not ?particularly implausible? and observed that plaintiffs could renew sanctions request if evidence later supported it
Nature of Case: Company asserted various claims against former employees, including misappropriation of trade secrets, intentional interference with prospective business opportunity, breach of loyalty and violation of the Computer Fraud and Abuse Act
Electronic Data Involved: Employer-provided laptops; other ESI
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