Key Insight: Where plaintiff demonstrated that allowing defendant unrestricted access to database would result in a clearly defined and serious injury, court held that plaintiff’s “confidential – attorneys’ eyes only” designation was appropriate and denied motion to compel
Nature of Case: Contract dispute
Electronic Data Involved: Database containing research data
Key Insight: Motion to preclude in-house counsel from having access to confidential information produced by competitors denied; court established detailed protective order for handling of confidential information
Nature of Case: Antitrust
Electronic Data Involved: Electronic documents
Key Insight: Court created its own eight-factor test by adding one more factor to the Zubulake seven-factor test, and determined that cost-shifting was appropriate (responding party 25% and requesting party 75%)
Nature of Case: Sexual harassment
Electronic Data Involved: Email stored on backup tapes
Key Insight: Employer entitled to discover, at its own expense, copies of database on computer disk, code books and user manual created by EEOC’s expert from information produced by employer to allow for effective cross-examination of EEOC’s expert; in addition, employer to pay “fair portion of the fees and expenses incurred” in the past by EEOC for the expert’s work in encoding the requested data and formulating the database
Nature of Case: Consolidated Title VII action brought by individual and EEOC
Electronic Data Involved: Database created by EEOC’s expert from information produced by employer
Key Insight: Court granted underwriter defendants’ motion for extension to complete production of certain electronic discovery but advised that, should they fail to meet this schedule, plaintiffs could request to be relieved of their obligation to share expenses in the production of electronic discovery; further, defendants to conduct additional electronic discovery searches for nine more custodians
Nature of Case: Securities class action
Electronic Data Involved: Electronic discovery
Key Insight: Motion for protective order requiring plaintiff to share the cost of restoring computer files denied; Zubulake judge applied Zubulake factors and concluded that cost-shifting was not appropriate
Nature of Case: Breach of contract class action
Electronic Data Involved: Computer files housed on decommissioned systems
Key Insight: Defendant required to produce documents regarding use of software program and designate Rule 30(b)(6) witness to testify about defendant’s use of software program; defendant allowed to submit protective order “to safeguard divulgence of such information to third parties”
Nature of Case: Insurance bad faith
Electronic Data Involved: Colossus computer software program used by insurance industry to evaluate claims
Key Insight: Order compelling defendant surgeon to produce his surgical database, to include information related to all the cholecystectomy procedures defendant had ever performed (with the patient names redacted) was abuse of discretion; matter remanded with directions that the court examine the database contents in camera to determine relevance and privilege issues
Nature of Case: Medical malpractice
Electronic Data Involved: Surgical database maintained by defendant surgeon
Copyright © 2026, K&L Gates LLP. All Rights Reserved.