Electronic Discovery Law

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

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Gambale v. Deutsche Bank Ag, 2002 WL 31655326 (S.D.N.Y. Nov. 21, 2002)
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In re Gabapentin Patent Litig., 214 F.R.D. 178 (D.N.J. 2003)
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Fresenius Med. Care Holding Inc. v. Baxter Int’l, Inc., 224 F.R.D. 644 (N.D. Cal. 2004)
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Fischbach v. Trustees of Cal. State Univ., 2004 WL 179471 (Cal. Ct. App. Jan. 31, 2004) (Unpublished)
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First USA Bank, N.A. v. Paypal, Inc., 76 Fed.Appx. 935, 2003 WL 22071558 (Fed. Cir. Aug. 21, 2003)
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First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993)
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Felham Enter. (Cayman) Ltd. v. Certain Underwriters at Lloyd’s, 2004 WL 2360159 (E.D. La. Oct. 19, 2004)
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Farmers Ins. Co., Inc. v. Peterson, 81 P.3d 659 (Okl. 2003)
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In re Fagnant, 2004 WL 2944126 (Bankr. D.N.H. Dec. 13, 2004
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Excelligence Learning Corp. v. Oriental Trading Co., 2004 WL 2452834 (N.D. Cal. June 14, 2004)

Gambale v. Deutsche Bank Ag, 2002 WL 31655326 (S.D.N.Y. Nov. 21, 2002)

Key Insight: Defendants ordered to provide an affidavit explaining steps taken to search paper and electronic files for responsive documents and feasibility and cost of retrieving certain emails. Plaintiff would then have option of consenting to protocol set forth in Rowe Entertainment as modified by Murphy Oil, or arguing for different protocol by conferring with defendant and submitting a joint letter outlining parties’ respective positions on the issue

Nature of Case: Gender discrimination

Electronic Data Involved: Email and electronic files

Fresenius Med. Care Holding Inc. v. Baxter Int’l, Inc., 224 F.R.D. 644 (N.D. Cal. 2004)

Key Insight: Magistrate found good cause to grant motion to compel where deponent identified source code in deposition which had not been produced; court ordered defendant to produce sworn declaration setting forth the specific efforts it made to locate responsive documents and either a certification that all documents have been produced, or an explanation of why the documents have not yet been produced

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Fischbach v. Trustees of Cal. State Univ., 2004 WL 179471 (Cal. Ct. App. Jan. 31, 2004) (Unpublished)

Key Insight: Email discovered and produced after court granted summary judgment for defense and notice of appeal was filed constituted new evidence; appellate court granted writ of coram vobis, reversed and directed the trial court to deny defendants’ motion for summary judgment without prejudice to their renewing the motion after plaintiff had opportunity to conduct further discovery regarding email

Nature of Case: Defamation and invasion of privacy

Electronic Data Involved: Belatedly produced email found on key player’s hard drive

First USA Bank, N.A. v. Paypal, Inc., 76 Fed.Appx. 935, 2003 WL 22071558 (Fed. Cir. Aug. 21, 2003)

Key Insight: Former CEO of defendant subpoenaed and ordered to appear for deposition and produce his laptop computer for forensic inspection pursuant to court’s approved search protocol; CEO’s appeal of the nonfinal interlocutory order was dismissed

Nature of Case: Patent infringement

Electronic Data Involved: Laptop

First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641 (6th Cir. 1993)

Key Insight: Ex parte order permitting plaintiff and its counsel, with U.S. Marshal, to enter defendants’ business premises and inventory and impound computer records and copy and inventory business records was abuse of discretion

Nature of Case: Crash test dummy manufacturer sued competitor for unfair competition, copyright infringement, misappropriation of trade secrets and related torts

Electronic Data Involved: Computer programs and printouts

Felham Enter. (Cayman) Ltd. v. Certain Underwriters at Lloyd’s, 2004 WL 2360159 (E.D. La. Oct. 19, 2004)

Key Insight: Where defendant did not timely object to document requests and belated privilege log was inadequate, court determined that attorney-client privilege and work product protection had been waived and ordered production

Nature of Case: Insurance coverage

Electronic Data Involved: Insurer’s computerized “Z-note” file contents related to particular claim

Farmers Ins. Co., Inc. v. Peterson, 81 P.3d 659 (Okl. 2003)

Key Insight: Writ of prohibition issued, vacating lower court’s order requiring defendant to search all of its electronic and hard copy claim files covering three-year period; court suggested alternate approach using statistical sampling technique, but left the particulars of such sampling to parties to litigate in lower court

Nature of Case: Insurance bad faith

Electronic Data Involved: Electronic claim files covering three-year period

In re Fagnant, 2004 WL 2944126 (Bankr. D.N.H. Dec. 13, 2004

Key Insight: Where defendant acted in good faith in printing and delivering to his counsel a copy of his computerized general ledger, but counsel failed to disclose it until the eve of trial, court denied plaintiff’s request for discovery sanction precluding introduction of general ledger at trial, but awarded monetary sanctions against defense counsel

Nature of Case: Adversary proceeding in bankruptcy court

Electronic Data Involved: Printout from computerized general ledger

Excelligence Learning Corp. v. Oriental Trading Co., 2004 WL 2452834 (N.D. Cal. June 14, 2004)

Key Insight: Court granted defendant’s motion to compel production where defendant agreed to limit scope of email request; further, court rejected defendant’s undue burden objection to plaintiff’s discovery requests where defense counsel argued that retrieval of responsive information would be time-consuming because it involved cross-referencing many databases and backup tapes, but did not submit the information in the form of a declaration

Nature of Case: Trademark infringement, misappropriation of trade secrets and related torts

Electronic Data Involved: Email; vendor information relating to 278 products

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