Key Insight: Court denied party’s motion to compel financial data in searchable electronic format in part because moving party had itself refused to produce its financials in searchable electronic format
Nature of Case: Patent litigation
Electronic Data Involved: Financial materials produced on CD in unsearchable “TIFF” format
Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful
Nature of Case: Patent infringement
Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery
Key Insight: Where plaintiff produced digitized documents from defendant’s inspection of nine boxes of hard copy documents (some 10,000 pages) per the parties’ agreement, court denied defendant’s motion to compel plaintiff to provide an index of such digitized documents, finding that Rule 34 does not require a party to create an index
Nature of Case: Breach of contract, negligence and breach of confidentiality agreement
Electronic Data Involved: Index of digital documents
Key Insight: Court applied Zubulake factors and granted in part defendant?s motion to shift costs, holding that defendant was entitled to recover 30 percent of the costs of restoring and searching backup tapes for responsive emails of one former employee, stating: “[I]f a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data.”
Nature of Case: Gender discrimination
Electronic Data Involved: Email stored on backup tapes
Key Insight: Court denied plaintiff?s request that defendants produce metadata for all records maintained in electronic form produced to date, where plaintiff did not demonstrate a particularized need for metadata, the parties had no agreement about the format of production of electronic files, and plaintiff did not seek metadata until months after defendants had produced hard copy and electronic copies of documents; if plaintiff still desired metadata, court suggested plaintiff identify specific documents for which it was needed
Nature of Case: Antitrust and anti-competitive conspiracy claims
Electronic Data Involved: Metadata
Key Insight: Magistrate ordered parties to share cost of $15,182 hard copy production (responding party to pay 60 percent and requesting party to pay 40 percent) where parties failed to seek assistance from the court prior to the copying, and where some of the reproduction was unnecessary since much of the information was available through other means, including on CD
Nature of Case: Trademark infringement
Electronic Data Involved: CD containing purchase orders
Key Insight: Court ordered that, to the extent the information kept in database was not duplicative of hard copy complaints produced, defendants must produce customer dispute information (including related information dealing with investigations and results) available through defendants’ computer databases dealing with disputes by certain consumers
Nature of Case: Breach of indemnification agreement
Electronic Data Involved: Databases used to manage customer accounts
Key Insight: Finding that requested documents were relevant and properly discoverable, court granted motion to compel production of various financial records, including an electronic copy of party’s Quickbooks files, and ordered that the records be produced under protective order in a form agreed to by the parties
Nature of Case: Securities fraud, unfair business practices, breach of contract
Electronic Data Involved: Electronic copy of Quickbooks files
Key Insight: Court rejected defendant’s excuses for extended delay in producing itemization of withdrawals in a format usable by plaintiff, and ordered defendant to reimburse plaintiff for the reasonable cost of attorneys’ fees incurred in moving for contempt of court’s prior order
Nature of Case: Breach of contract
Electronic Data Involved: Billing records, backup tapes, DVDs
Key Insight: Noting that a responding party “must cover the costs of gathering the requested item; not to cover the costs of reproduction absent a showing of good cause as to why the burden should be shifted,” court instructed plaintiff to provide hard copies of its website as defendant had requested, at defendant’s expense
Nature of Case: Copyright and trademark infringement
Electronic Data Involved: Website pages
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