Format Of Production – Page 26 – Electronic Discovery Law

Gen. Elec. Co. v. SonoSite, Inc., 2008 WL 4062098 (W.D. Wis. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where both sides argued that the other side had not produced all responsive information and it appeared to court that there were a few places in which parties may not have yet looked, court gave parties one last chance to look for responsive material before it would hold them to their ?the documents don’t exist? positions and warned that lack of diligence or forthrightness would result in sanctions; court further denied plaintiff?s request to modify protective order that required source code be made available on a computer at producing party?s office for viewing by opposing party

Nature of Case: Patent infringement

Electronic Data Involved: Source code

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 4427269 (D. Kan. Sept. 25, 2008)

Dec 01 2008

Key Insight: Court denied without prejudice plaintiff’s request for order compelling defendants to produce emails and attachments in native electronic format with metadata intact, pending plaintiff’s obtaining a computer expert to advise on the issue; court further allowed plaintiff?s request for additional time to retain expert to analyze ESI produced by defendants, and, if necessary, to designate such expert as trial witness

Nature of Case: Wrongful termination, FMLA violations, retaliation

Electronic Data Involved: ESI, primarily email and attachments

Kinexus Representative LLC v. Advent Software, Inc., 2008 WL 4379607 (Del. Ch. Sept. 22, 2008) (Unpublished)

Dec 01 2008

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

Cartwright v. Viking Indus., Inc., 2008 WL 4283614 (E.D. Cal. Sept. 11, 2008)

Dec 01 2008

Key Insight: Where parties agreed to production of database materials but failed to reach mutual understanding regarding need for privilege log, court held that failure to produce log due to misunderstanding did not waive privilege; court rejected argument that providing log would be unduly burdensome and expensive and ordered production of privilege log within two weeks

Nature of Case: Class action product liability litigation

Electronic Data Involved: Database

CBT Flint Partners, LLC v. Return Path, Inc., 2008 WL 4441920 (N.D. Ga. August 7, 2008)

Dec 01 2008

Key Insight: Where plaintiff moved to compel production of essentially every document in defendant?s possession, failed to engage in meaningful meet and confer discussions, repeatedly ?filled the record with invective? and made misrepresentations to court, and where defendant had produced in native format over 1.4 million pages of documents as result of electronic search using plaintiff?s 102 search terms in addition to numerous versions of source code and paper documents, and was in substantial compliance with discovery at time of hearing, and where court had previously imposed cost shifting by ordering production of certain documents contingent upon plaintiff bearing $300,000 of defendant?s privilege review expense, court further ruled that defendant was entitled, under Rule 37(a)(5), to an additional $86,787 representing 75 percent of its attorneys’ fees incurred in connection with the discovery dispute

Nature of Case: Patent infringement

Electronic Data Involved: Email, ESI

Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008)

Dec 01 2008

Key Insight: Finding that forensic analysis of defendants? business and home computers was appropriate where plaintiffs presented evidence of specific problems that raised questions regarding accuracy, completeness and authenticity of defendants? email production, court articulated detailed 20-point protocol covering, inter alia, instructions for parties? retention of third party forensic expert, scope of forensic search, privilege review and cost-shifting

Nature of Case: Breach of contract, tortious interference with contract, violations of trade secrets and unfair trade practices acts, and related claims

Electronic Data Involved: Work and home computers containing both business and personal information; email

U.S. v. Soliman, 2008 WL 4490623 (W.D.N.Y. Sept. 30, 2008)

Dec 01 2008

Key Insight: Court ordered government to re-produce CD-roms containing 60,000 documents ?in some accessible manner that is readily understood by the parties? where government?s previous production provided defendant with no index or way to locate a particular document or cross reference between disks and where despite no preference within the rules between inspection and copying, the government had undertaken to copy the materials for plaintiff

Nature of Case: Criminal prosecution for healthcare fraud

Electronic Data Involved: Over 60,000 documents produced on CD

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 4753358 (S.D. Fla. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendant produced electronic files in ?MAX format? with free ?Paperport? software to assist in its review but where plaintiff then expressed preference for hard copy documents and belief that electronic documents would cost triple the amount to review, court denied plaintiff?s motion to compel holding that defendants? production of files as kept in the usual course of business was sufficient; court also ruled that where plaintiff?s first request for documents did not specify production in electronic form, defendants need not reproduce hard copy documents electronically

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Moore v. Abbott Labs., 2008 WL 4981400 (S.D. Ohio Nov. 19, 2008)

Dec 01 2008

Key Insight: Where defendant produced relevant emails from targeted custodians but where plaintiff sought all emails mentioning his name and where additional searching would cost $300,000, court declined to compel production of additional emails; where emails were produced in hard copy and relevant metadata could not be seen, court ordered defendants to ?determine feasibility? of electronic production and to produce in electronic form ?absent unusual circumstances?; court denied motion to compel generally where plaintiff?s requests were overbroad and unreasonable in their scope

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Ajaxo Inc. v. Bank of Am. Tech. and Operations, Inc., 2008 WL 5101451 (E.D. Cal. Dec. 2, 2008)

Dec 01 2008

Key Insight: Where plaintiff failed to produce requested expert information in searchable format, pursuant to court order, until after defendants filed a motion for sanctions, but where plaintiffs failures were not willful and where prejudice to defendants was minimal, court ordered plaintiff to bear costs of defendants? motion to compel but declined to strike plaintiffs? expert or impose other severe sanctions

Nature of Case: Patent lawsuit

Electronic Data Involved: Expert’s report in searchable format

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