Motion to Compel – Page 139 – Electronic Discovery Law

Bowles v. Nat’l Ass’n of Home Builders, 2004 WL 2203831 (D.D.C. Sept. 30, 2004)

Dec 01 2004

Key Insight: Court ruled that defendant effected waiver of its attorney-client and work product privileges as to all documents on the same subject matter as the privileged documents it gave to plaintiff when she was president, since defendant’s failure to take any legal action to assert its privilege or otherwise to recover the documents for more than a year did not constitute “reasonable steps to reclaim the protected material.” Parties ordered to submit further briefing on the scope of the subject matter waiver.

Nature of Case: Former president of association sued for wrongful termination

Electronic Data Involved: Privileged emails

Farmers Ins. Co., Inc. v. Peterson, 81 P.3d 659 (Okl. 2003)

Dec 01 2004

Key Insight: Writ of prohibition issued, vacating lower court’s order requiring defendant to search all of its electronic and hard copy claim files covering three-year period; court suggested alternate approach using statistical sampling technique, but left the particulars of such sampling to parties to litigate in lower court

Nature of Case: Insurance bad faith

Electronic Data Involved: Electronic claim files covering three-year period

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)

Dec 01 2004

Key Insight: Emails exchanged between a narrow group of plaintiff corporate business’s non-attorney employees were protected from discovery by attorney-client privilege and work product doctrine; further, statements on plaintiff’s web site waived work product protection for affidavits described therein, but did not waive work product protection with respect to plaintiff’s recorded conversation with competitor’s former employees and email exchanges with them

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Email

Oved & Assocs. Const. Servs., Inc. v. Superior Court, 2003 WL 23028903 (Cal. App. Dec. 30, 2003) (Unpublished)

Dec 01 2004

Key Insight: Petition for writ of mandate denied; based on evidence that a business computer was used for accounting and nothing else, and that there was a risk the hard drive might be purged, trial court acted properly when it ordered the petitioner to produce the computer’s hard drive

Nature of Case: Misappropriation of funds

Electronic Data Involved: Hard drive

Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)

Dec 01 2004

Key Insight: Email stored in government computers does not automatically become public records by virtue of that storage; private or personal email fell outside the statutory definition of “public records”

Nature of Case: Newspaper sued city to release as public record all email sent from or received by two city employees

Electronic Data Involved: Email

Peter Rosenbaum Photography Corp. v. Otto Doosan Mail Order Ltd., 2004 WL 2973822 (N.D. Ill. Nov. 30, 2004)

Dec 01 2004

Key Insight: Court ordered nonparty to comply with subpoenas seeking electronic records, imposing monetary sanctions for nonparty’s unsupported argument that bankruptcy court’s automatic stay prevented it from having to comply with the subpoenas and ordering nonparty and plaintiff to meet and confer on means for compliance

Nature of Case: Copyright infringement

Electronic Data Involved: Electronic records, including email

Hagemeyer N. Am., Inc. v. Gateway Data Sci. Corp., 222 F.R.D. 594 (E.D. Wis. 2004)

Dec 01 2004

Key Insight: Adopting Zubulake and McPeek approaches, court ordered defendant to restore a sampling of five backup tapes selected by the plaintiff; parties would thereafter be required to make additional submissions addressing whether the burden or expense of satisfying the entire request was proportionate to the likely benefit

Electronic Data Involved: Email stored on backup tapes

Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323 (10th Cir. 1981)

Dec 01 2004

Key Insight: Subpoena seeking non-party’s software trade secrets enforced since trade secrets were relevant and necessary to patent suit and need for information outweighed possible injury to third party

Nature of Case: Patent infringement

Electronic Data Involved: Software trade secrets of third party

Felham Enter. (Cayman) Ltd. v. Certain Underwriters at Lloyd’s, 2004 WL 2360159 (E.D. La. Oct. 19, 2004)

Dec 01 2004

Key Insight: Where defendant did not timely object to document requests and belated privilege log was inadequate, court determined that attorney-client privilege and work product protection had been waived and ordered production

Nature of Case: Insurance coverage

Electronic Data Involved: Insurer’s computerized “Z-note” file contents related to particular claim

Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)

Dec 01 2004

Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”

Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)

Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data

Tag:Motion to Compel