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: Where record showed that defendants’ record keeping was episodic at best, and that existing documentation was inaccurate and possibly manufactured for the litigation, court directed plaintiff, if she wished to undertake a forensic examination of any computer, to provide a detailed affidavit by a specialist who would conduct such testing, including a precise specification of what is to be done, for what purpose and in what period of time
Nature of Case: Breach of fiduciary duty against art gallery
Electronic Data Involved: Computer hard drive
Key Insight: Court ruled that American Express would be allowed to conduct a Rule 30(b)(6) deposition to address the topics of Wells Fargo’s document retention, collection and production efforts in the litigation, but that such deposition would be limited to three hours; court further noted: “American Express and Wells Fargo have each declined to produce certain information, for example, the content of their ‘litigation hold’ notices. In such situations, it is unlikely that I would compel one party to produce such information, unless American Express and all of the Bank Defendants stipulate to simultaneous exchange of all their information concerning a given topic.”
Nature of Case: Antitrust
Electronic Data Involved: Legal hold notices
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, despite repeated warnings not to destroy relevant evidence, defendant allowed another party to reformat hard drives of his employees’ computers without first preserving relevant files contained on computers to be reformatted, resulting in loss of crucial electronic evidence, court found that adverse inference instruction was appropriate sanction
Nature of Case: Breach of contract
Electronic Data Involved: Email and customer files
Key Insight: Court granted plaintiff?s motion to compel responses to certain interrogatories, finding that defendant?s vague contention that interrogatories were burdensome and oppressive was unconvincing given its computerized database: “Without further evidence to the contrary, the Court believes that the alleged difficulty of distilling the requested information from the computerized database is overblown.”
Nature of Case: Race discrimination
Electronic Data Involved: Information contained in database
Key Insight: Motion for forensic examination of opposing party’s computer hard drives denied where movant failed to provide any details about how the examination would be conducted and did not present specific, concrete evidence of concealment or destruction of evidence sufficient to justify the relief requested; instead, court found appropriate the “compromise” suggested by plaintiff that its own attorneys personally review the computers to ensure that any additional responsive documents that may exist in readable form were produced
Nature of Case: Misappropriation of intellectual property
Electronic Data Involved: Hard drives
Key Insight: Court entered default judgment as discovery sanction where forensic evidence showed that defendant deliberately used ?wiping? software to permanently remove data from her hard drive and stated: “The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing.”
Nature of Case: Copyright infringement
Electronic Data Involved: Hard drive
Key Insight: Court granted motion to compel and overruled defendants’ objections that terms “electronic databases,” “personnel related data,” “database,” “coded fields” and “data dictionaries” were vague and ambiguous, since plaintiffs had attempted to resolve any ambiguity by providing definitions in a separate letter and court’s own guidelines referred to The Sedona Conference? comprehensive glossary of terms related to electronically stored information
Nature of Case: Employment discrimination
Electronic Data Involved: Databases
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
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