Keyword Search – Page 22 – Electronic Discovery Law

Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006)

Dec 01 2006

Key Insight: Preservation order not warranted under three-part balancing test, but defendants would be required to treat Document Retention Questionnaire and supplemental letter inquiries regarding electronic document maintenance and retention as interrogatories and provide substantive responses since plaintiff provided ample basis and deposition was no substitute; magistrate also ordered production of electronic records in native file format since defendant had not provided any substantive basis for objection

Nature of Case: Defamation, tortious interference with prospective economic advantage and civil conspiracy

Electronic Data Involved: Email and other electronic records

Fed. Trade Comm’n v. Ameridebt, Inc., 2006 WL 618563 (N.D. Cal. Mar. 13, 2006)

Dec 01 2006

Key Insight: Magistrate denied third party’s motion to stay discovery order requiring him to give permission to Google, Inc. to produce emails from his gmail account, where third party failed to establish any likelihood of success on appeal or that the balance of hardships tipped in his favor; court was “skeptical” of third party’s unsubstantiated arguments that the volume of email was large and that attorney review would be unduly costly, and noted that “email could likely be screened efficiently through the use of electronic search terms that the parties agreed upon”

Nature of Case: Allegations of consumer fraud

Electronic Data Involved: Email in third party’s Google email account

Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668 (D. Kan. Mar. 24, 2006)

Dec 01 2006

Key Insight: During initial case management conferences, court ordered mirror imaging of all of defendants’ computers and peripheral equipment, e.g., ZIP drives, to be done at plaintiffs’ expense, and ordered parties to meet and confer on appropriate search protocol that would address the issue of protection of attorney client privilege and non-business related personal information which may be located on the computer hard drives

Nature of Case: Copyright infringement, fraud and civil conspiracy

Electronic Data Involved: All defendants’ computers and peripheral equipment

Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (N.Y. Sup. Ct. 2006)

Dec 01 2006

Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted

Nature of Case: Fraud and breach of contract claims

Electronic Data Involved: Email and non-email electronic documents restored from backup tapes

Lewis v. Sch. Dist. #70, 2006 WL 2506465 (S.D. Ill. Aug. 25, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel further response to overbroad request for all emails, finding that defendants’ production of all existing emails sent to or from plaintiff, or pertaining to plaintiff’s performance during relevant time period was a reasonable attempt to provide responsive information; court further rejected plaintiff’s motion for an order to show cause regarding possible spoliation, concluding that it was not reasonable for defendants “to have foreseen that all e-mails would be relevant to plaintiff’s situation”

Nature of Case: Employment discrimination

Electronic Data Involved: Email

OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006)

Dec 01 2006

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

Quinby v. WestLB AG, 245 F.R.D. 94 (S.D.N.Y. 2006)

Dec 01 2006

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

Plasse v. Tyco Elecs. Corp., 448 F. Supp. 2d 302 (D. Mass. 2006)

Dec 01 2006

Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees

Nature of Case: Wrongful termination

Electronic Data Involved: Laptop; drafts of plaintiff’s resume

Patmont Motor Werks, Inc. v. CSK Auto Inc., 2006 WL 2591042 (D. Nev. Sept. 8, 2006)

Dec 01 2006

Key Insight: Court denied plaintiff’s renewed motion for sanctions where plaintiff had failed to satisfy local meet and confer requirement; parties had previously engaged in meet and confer during recess and agreed on search methodology for responsive documents and emails

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Spreadsheet; email

Dorel Juvenile Group, Inc. v. DiMartinis, 2006 WL 3240116 (S.D. Ind. Sept. 29, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel production of an exact image of the hard drive of defendant’s personal computer and instead ordered that the examination of and production from defendant’s personal computer proceed on the terms spelled out in defendant’s responses to the motion to compel

Electronic Data Involved: PC hard drive

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