Motion for Protective Order – Page 25 – Electronic Discovery Law

Frees, Inc. v. McMillian, 2006 WL 2668843 (E.D. Tenn. Sept. 15, 2006)

Dec 01 2006

Key Insight: Court narrowed subpoena to defendant’s new employer, setting out “tiered discovery” process: plaintiff was to identify at least one project involving files allegedly removed from disputed laptop; new employer would then search for documents and/or files of the type described that were related to that project and produce them; if any of the produced documents and/or files were shown to be relevant or reasonably calculated to lead to the discovery of admissible evidence, then the parties would proceed to the ?second tier? of discovery and plaintiff could then request documents related to other projects; if no responsive documents could be found with respect to the first identified projects, however, plaintiff would be required to make a sufficient showing to the court as to why discovery should proceed further

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Proprietary business and technological data

S.E.C. v. Brady, 2006 WL 3301865 (N.D. Tex. Oct. 16, 2006)

Dec 01 2006

Key Insight: Court sustained objection to portion of defendant’s subpoena based on undue burden, where potentially responsive electronic data was estimated to be 32,222,000 pages and there were over 226 boxes of hard copy documents, and vast majority of responsive documents were in the possession of the SEC and had either already been produced by the SEC to Brady, or would shortly be produced

Nature of Case: Securities litigation

Electronic Data Involved: Email and electronic data

Cahill v. Doe, 879 A.2d 943 (Del. Super. Ct. 2005)

Dec 01 2005

Key Insight: Court denied John Doe’s motion for protective order preventing internet service provider from disclosing his identity, finding that (1) plaintiffs had, in good faith, alleged that John Doe had used the internet as a tool for defamation, (2) the identifying information sought was directly and materially related to thir claim, and (3) the information could not be obtained from any other source

Nature of Case: Elected town council member and wife sued anonymous user of an internet “blog” who posted defamatory statements about plaintiffs on blog

Electronic Data Involved: Blog posting

Stamps v. Encore Receivable Mgmt., Inc., 232 F.R.D. 419 (N.D. Ga. 2005)

Dec 01 2005

Key Insight: Plaintiff was not entitled to protective order delaying, until after key depositions were taken, production of tape recording of message left by defendant’s representative on plaintiff’s home answering machine, since tape constituted substantive evidence and was not mere impeachment evidence, and issues of fairness weighed in favor of production

Nature of Case: Debtor alleged violations of Fair Debt Collection Practices Act

Electronic Data Involved: Tape recording of message left on answering machine

Galvin v. Gillette Co., 2005 WL 1155253 (Mass. Super. Apr. 28, 2005)

Dec 01 2005

Key Insight: Where much of the material sought did not appear to touch on or be relevant to the matter under investigation by the Secretary, i.e., whether fraud may be present in the UBS or Goldman, Sachs fairness opinions based on information provided by Gillette, court quashed broad subpoena issued to Gillette without prejudice to the Secretary issuing a new subpoena more narrowly drafted

Nature of Case: Secretary of the Commonwealth of Massachusetts issued subpoena under state securities act in connection with pending merger

Electronic Data Involved: Email

Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005)

Dec 01 2005

Key Insight: Court ordered plaintiff to produce all materials that plaintiff’s counsel furnished to plaintiff’s testifying expert, regardless of privilege or claimed work product protection, including emails, summaries, spreadsheets and draft expert reports

Nature of Case: Employer sought to enforce restrictive covenants against former employees

Electronic Data Involved: Emails, spreadsheets, draft expert reports

Pamlab, L.L.C. v. Rite Aid Corp., 2005 WL 589573 (E.D. La. Mar. 3, 2005)

Dec 01 2005

Key Insight: Court modified Rule 30(b)(6) notice of deposition and ordered defendant to produce a representative to testify concerning various matters, including defendant’s document destruction and retention policies for paper and electronic information, and what information sought in particular interrogatory could be retrieved from computer system and what could only be retrieved manually

Nature of Case: Drug company claimed drug store chain improperly substituted one drug for another

Electronic Data Involved: Computer databases

Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee

Nature of Case: Divorce proceeding

Electronic Data Involved: Data on hard drives

United States v. Mallinckrodt, Inc., 227 F.R.D. 295 (E.D. Mo. 2005)

Dec 01 2005

Key Insight: Inadvertent disclosure of government’s privileged litigation report by copying report onto CD-ROMs produced to over 50 defense attorneys did not effect waiver of attorney-client privilege where (1) government took reasonable precautions to prevent inadvertent disclosure by segregating privileged documents in extensive privilege review of more than 61,000 pages, (2) only one privileged document was inadvertently produced, (3) government acted promptly by alerting all counsel of inadvertent production within one month after learning of the disclosure, and (4) the interest of justice favored relieving the government of its error

Nature of Case: Environmental litigation

Electronic Data Involved: CD-ROM

Public Relations Soc’y of Am., Inc. v. Road Runner High Speed Online, 799 N.Y.S.2d 847 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Finding that individual had stated cognizable defamation claim against anonymous author of offending email, court denied email author?s application to vacate order requiring internet service provider to disclose email account information

Nature of Case: Defamation claim based on offending email message

Electronic Data Involved: Email author identity

Tag:Motion for Protective Order