Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

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Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)
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Katt v. Titan Acquisitions, Inc., 244 F. Supp. 2d 841 (M.D. Tenn. 2003)
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Kadant v. Seeley Machine, Inc., 244 F. Supp. 2d 19 (N.D.N.Y. 2003)
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Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)
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In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004)
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Jimenez v. Madison Area Technical Coll., 321 F.3d 652 (7th Cir. 2003)
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Jackson v. Microsoft Corp., 211 F.R.D. 423 (W.D. Wash. 2002)
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Itzenson v. Hartford Life & Accident Ins. Co., 2000 WL 1507422 (E.D. Pa. Oct. 10, 2000)
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Invision Media Communications, Inc. v. Fed. Ins. Co., 2004 WL 396037 (S.D.N.Y. Mar. 2, 2004)
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Inst. for Motivational Living, Inc. v. Doulos Inst. for Strategic Consulting, Inc., 2004 WL 2241745 (3rd Cir. Oct. 5, 2004) (Unpublished)

Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)

Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”

Nature of Case: Valuation dispute arising as result of two merger agreements

Electronic Data Involved: Email stored on monthly backup tapes

Katt v. Titan Acquisitions, Inc., 244 F. Supp. 2d 841 (M.D. Tenn. 2003)

Key Insight: Despite dismissal of all plaintiffs’ claims and entry of final judgment on the merits, court retained ancillary jurisdiction over plaintiffs’ motion for sanctions for spoliation of electronic evidence for purpose of holding a hearing before ruling on the motion

Nature of Case: Securities class action

Electronic Data Involved: Electronic evidence

Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)

Key Insight: Federal database containing firearms tracing and licensing data which was maintained by Bureau of Alcohol, Tobacco & Firearms was relevant to plaintiffs’ claims, and was not protected by any law enforcement privilege when produced subject to an order of confidentiality; motion to quash subpoena denied

Nature of Case: Negligence action against manufacturers, distributors, and retailers of weapon used in robbery

Electronic Data Involved: Database maintained by Bureau of Alcohol, Tobacco, Firearms and Explosives

In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004)

Key Insight: Supreme Court of Wisconsin quashed as overbroad a “John Doe” subpoena seeking all digital computer information or data maintained by the legislature’s technology services bureau, stored by or on behalf of certain named elected officials, any person who had ever been employed in their offices, as well as anyone who had ever been employed in the legislative caucuses for both parties or, in the alternative, the backup tapes from December 15, 2001, for the entire legislative branch of government

Nature of Case: Criminal investigation relating to political caucuses and actions of certain legislators

Electronic Data Involved: All digital computer information or data, and backup tapes for the entire legislative branch of government

Jimenez v. Madison Area Technical Coll., 321 F.3d 652 (7th Cir. 2003)

Key Insight: No abuse of discretion to dismiss suit with prejudice and impose sanctions against plaintiff under Rule 11, where it was determined that plaintiff had relied on falsified email and letters to support her discrimination claims

Nature of Case: Employment discrimination based on race, sex and ethnic origin

Electronic Data Involved: Email

Jackson v. Microsoft Corp., 211 F.R.D. 423 (W.D. Wash. 2002)

Key Insight: Plaintiff’s misconduct and discovery abuse (including obtaining email and proprietary information of employer, paying for such material, copying and using material to prepare case, and engaging in elaborate series of lies during depositions and evidentiary hearings re same) warranted dismissal with prejudice

Nature of Case: Employment discrimination

Electronic Data Involved: CDs and laptop computer hard drive

Itzenson v. Hartford Life & Accident Ins. Co., 2000 WL 1507422 (E.D. Pa. Oct. 10, 2000)

Key Insight: Discovery deadline extended and defendant ordered to “use every practicable means” to identify requested claims files; if defendant truly cannot segregate the claim files, defendant would be directed to make available a representative with requisite knowledge and skill to assist plaintiff’s representative in reviewing and identifying as promptly as possible each unsegregated file which met plaintiff’s criteria

Nature of Case: ERISA action to recover death benefits under employee benefit plan

Electronic Data Involved: Database re insurance claims

Invision Media Communications, Inc. v. Fed. Ins. Co., 2004 WL 396037 (S.D.N.Y. Mar. 2, 2004)

Key Insight: Plaintiff?s discovery misconduct, including disregard of discovery obligations, misleading statements regarding existence and location of evidence and failure to make reasonable inquiries, warranted sanctions in the form of costs and reasonable attorneys? fees expended by defendant in connection with sanctions motion and certain discovery events

Nature of Case: Insurance coverage

Electronic Data Involved: Email and hard drives

Inst. for Motivational Living, Inc. v. Doulos Inst. for Strategic Consulting, Inc., 2004 WL 2241745 (3rd Cir. Oct. 5, 2004) (Unpublished)

Key Insight: Appellate court ruled that trial court did not err in awarding sanctions and finding defendant in civil contempt where, moments before he signed settlement agreement and in violation of discovery preservation order, defendant deleted files from laptop that was to be returned to plaintiff; however, case would be remanded so that trial court could determine what amount of attorneys’ fees fairly reflect compensation for defendant’s contumacious conduct

Nature of Case: Copyright and trademark infringement, misappropriation of trade secrets

Electronic Data Involved: Files stored on laptop computer

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