Inspection – Page 10 – Electronic Discovery Law

Thompson v. Harding Univ., 2007 WL 2081695 (E.D. Ark. July 20,2007)

Dec 01 2007

Key Insight: Where defendant received from an anonymous source a copy of an email sent by plaintiff which had not been produced by plaintiff in discovery, court denied defendant’s motion for access to plaintiff’s computer but stated that defendant would be permitted to depose plaintiff about items in his possession and items no longer in his possession, and court would be willing to entertain renewed motion depending on the testimony obtained

Nature of Case: Student who was suspended and denied re-admission alleged discrimination claims

Electronic Data Involved: Plaintiff’s personal computer

Bishop v. Toys ?R? US-NY, LLC, 2007 WL 2042913 (S.D.N.Y. July 13, 2007)

Dec 01 2007

Key Insight: Overruling plaintiff’s objection that magistrate judge’s sanctions order did not go far enough and should have required defendant to retain a computer forensic expert to examine surveillance equipment to determine whether deleted images were recoverable, court found that order was neither clearly erroneous nor contrary to law since defendant had produced affidavit of individual who personally installed and serviced the surveillance system who stated that he inspected the surveillance data system and determined that the images were not recoverable

Nature of Case: Customer asserted federal civil rights claims arising from his detention by store security guards

Electronic Data Involved: Surveillance video

Doe v. Morey Charter Sch., 2007 WL 2331864 (E.D. Mich. Aug. 14, 2007)

Dec 01 2007

Key Insight: District court overruled plaintiff’s objections to magistrate judge’s order denying in part motion to compel since order was not clearly erroneous; although plaintiff argued that more material should have been produced, defendants represented that they had produced everything and magistrate judge noted that both sides’ counsel had access to mirror images of hard drives containing the requested data which had been seized in police investigation

Nature of Case: Allegations of sexual abuse and harrassment by former elementary school teacher

Electronic Data Involved: Email and other ESI

Square D Co. v. Scott Elec. Co., 2007 WL 3488809 (W.D. Pa. Nov. 14, 2007)

Dec 01 2007

Key Insight: Declining to impose sanctions at this stage of litigation, court reiterated its prior order requiring defendant to submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at defendant’s sole expense and cost; court further denied defendant’s motion for protective order for lack of good cause

Nature of Case: Circuit breaker manufacturer alleged that defendants unlawfully imported, distributed, and sold counterfeit Square D products

Electronic Data Involved: Defendant’s computer systems

John B. v. Goetz, 2007 WL 4198266 (M.D. Tenn. Nov. 26, 2007)

Dec 01 2007

Key Insight: Where goal of prior discovery orders authorizing immediate forensic copying of computers of defendants’ 50 key custodians by plaintiff?s expert, escorted by United States Marshall, was to protect against defendants? destruction of responsive information in light of defendants? persistent and contumacious refusals to produce ESI, court denied motion for stay of orders pending appeal, finding that the class?s interests far outweighed any potential harm to defendants in the execution of the orders

Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services

Electronic Data Involved: Computer systems of defendant Tennessee state agencies

John B. v. Goetz, 2007 WL 4014015 (M.D. Tenn. Nov. 15, 2007)

Dec 01 2007

Key Insight: Ruling on defense motions for clarification, court directed that plaintiffs? expert and court-appointed monitor shall ?forthwith inspect the State?s computer systems and computers of the fifty (50) key custodians that contain information relevant to this action,? that plaintiffs? expert or his designee ?shall make forensic copies of any computer inspected to ensure the preservation of all existing electronically stored information (?ESI?)?; court further ordered that United States Marshall should accompany the plaintiffs? expert to ?ensure that this Order is fully executed.?

Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services

Electronic Data Involved: Computer systems of defendant Tennessee state agencies

Auto. Inspection Servs., Inc. v. Flint Auto Auction, Inc., 2007 WL 3333016 (E.D. Mich. Nov. 9, 2007)

Dec 01 2007

Key Insight: Though plaintiff?s counsel?s conduct in failing to give notice to defendant prior to executing subpoena and inspecting and copying two laptop computers of non-party was ?a flagrant abuse of the subpoena power and bad faith,? sanction of dismissal was too harsh and court instead imposed “sizeable” monetary sanction

Nature of Case: Breach of licensing agreement

Electronic Data Involved: Hard drives of two laptops owned by non-party

Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 3101248 (D. Nev. Oct. 16, 2007)

Dec 01 2007

Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them

Nature of Case: Infringement litigation

Electronic Data Involved: Servers

Kelly v. Montgomery Lynch & Assocs., Inc., 2007 WL 4412572 (N.D. Ohio Dec. 13, 2007)

Dec 01 2007

Key Insight: Where defendant produced no evidence or description of its attempt to engage in a “reasonable inquiry” under FRCP 26 to discover and produce the requested information, other than the general observation that finding the information would be difficult, and where issue of numerosity was important issue for class certification, court ordered defendant to produce information and if it failed to immediately undertake good faith effort to do so, court would allow plaintiff and his counsel ?to inspect in a reasonable manner the Defendant’s files and records, including electronically stored information, on these issues?

Nature of Case: Putative class action alleging violations of Fair Debt Collection Practices Act

Electronic Data Involved: Information regarding number of individuals who received particular letter from defendant collection agency

Vennet v. Am. Intercont’l Univ. Online, 2007 WL 4442321 (N.D. Ill. Dec. 13, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel on variety of e-discovery topics and ordered defendant to allow plaintiffs? expert reasonable access to (1) phone system and backup system for purpose of recovering inadvertently overwritten phone logs and (2) appropriate personal computers or computer network in order to search for particular documents; plaintiffs further allowed to take Rule 30(b)(6) deposition concerning defendant?s computer network, phone system, and document retention and destruction practices

Nature of Case: Plaintiffs alleged violations of the Fair Labor Standards Act

Electronic Data Involved: Email and other ESI

Tag:Inspection