Third Party Discovery – Page 10 – Electronic Discovery Law

AL Noaimi v. Zaid, No. 11-11560EFM, 2012 WL 4758048 (D. Kan. Oct. 5, 2012)

Dec 01 2012

Key Insight: Court denied plaintiffs? motion to quash defendants? subpoena to one of plaintiffs? email providers where plaintiffs? assertions of breadth and burden were merely conclusory and were unsupported by evidence, where defendants agreed to allow plaintiffs? counsel to review the emails before production to defendants, and where the court?s power to compel the plaintiff to consent to the isp?s production circumvented any problems with the Electronic Communications Privacy Act

Nature of Case: breach of contract, breach of fiduciary duty and related claims

Electronic Data Involved: Emails from internet service provider (ISP)

Hageman v. Accenture, No. 10-1759 (RHK/TNL), 2012 WL 8993423 (D. Minn. Oct. 19, 2011)

Dec 01 2012

Key Insight: Analyzing a question of control, court ruled that where defendant?s employees could access emails/information stored in a third party?s server ?within his or her normal day-to-day work? then that information was within defendant?s control but that information which was not accessible to the employees was no longer in defendant?s control, and thus properly requested using a Rule 45 subpoena

Nature of Case: Employment discrimination

Electronic Data Involved: ESI/emails stored on third party server

In re Application of Wilson & Partners, No. 06-cv-02575-MKS-KMT, 2012 WL 1901217 (D. Colo. May 24, 2012)

Dec 01 2012

Key Insight: Court found that third party failed to establish the reasonableness or necessity of attorney?s fees related to setting up a database to assist in production, including dealing with administrator of that database and thus upheld recommendation against recovery of attorney?s fees; court affirmed recommendation against recovery of costs related to manual review and production that resulted from abandonment of the document database (because of problems with the database) where the Magistrate Judge determined the review was an ?unnecessarily incurred expense, which [the requesting party] had no ability to control or contain;? court adopted recommendation ordering that third party respondents be responsible for half the cost of the database

Fraserside IP LLC v. Gamma Entm?t., —F. Supp. 2d—, 2012 WL 4504818 (N.D. Iowa Sept. 28, 2012)

Dec 01 2012

Key Insight: In dispute over jurisdictional discovery, court concluded that plaintiff was entitled to a ?small slice? of defendant?s Google Analytics data (which tracks and accumulates data related to websites? visitors) related to the number of visitors to defendant?s website(s) from Iowa-based IP addresses; court agreed with plaintiff that it was entitled to ?more? than a hard copy PDF ?screen grab? of the relevant information and indicated that it anticipated production as HTML pages that could be opened with a standard internet browser, but that if that was not an agreeable solution, another hearing would be held

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Google Analytics

Ohio Valley Environ. Coalition, Inc. v U.S. Army Corps of Eng?gs, No. 1:11MC35, 2012 WL 112325 (N.D. W. Va. Jan. 12, 2012)

Dec 01 2012

Key Insight: Where non-party represented that responding to subpoena would be burdensome in light of need to comb through vast amounts of ESI which had not been organized in anticipation of litigation, court determined such representations constituted ?blanket assertions? but failed to meet the high burden of showing, with particularity, the source and extent of the burden claimed and declined to quash the subpoena for that reason

Electronic Data Involved: Research materials from university professor

In re Subpoena to Creeden & Assocs., No. 12C 5573, 2012 WL 4580841 (N.D. Ill. Sept. 28, 2012)

Dec 01 2012

Key Insight: Addressing plaintiff?s motion to enforce a subpoena, the court focused on the issue of the burden to the third party and granted plaintiff?s motion as to the requests for production with some limitations and also conducted an 8-part cost shifting analysis which resulted in the court?s order that plaintiff was to bear 60 of the third party?s ?staff research and production costs? and 30 of the third party?s ?legal costs?; court indicated that the ?lower legal percentage [was] a reflection of what the Court believe[d] was [the third-party?s] recalcitrance to meaningfully participate in legal negotiations concerning discovery thus far? and that ?[t]he lower legal fee-shifting amount is also an attempt to get [the third party] to object only to those points it really cares about?

Nature of Case: Antitrust

U.S. Bank Nat?l Assoc. v. PHL Variable Ins. Co., No. 12 Civ. 6811(CM)(JCF), 2012 WL 5395249 (S.D.N.Y. Nov. 5, 2012)

Dec 01 2012

Key Insight: Considering burdensome nature of subpoenas to non-parties, court found that cost shifting was appropriate and ordered plaintiff to bear the search, collection and production costs associated with the non-parties? compliance with the subpoenas; non-parties? were ordered to bear their own costs associated with privilege review, but, in order to give them ?the option of conducting a more economical analysis while minimizing the risk of waiver,? the court entered a non-waiver order pursuant to Rule 502(d) that would preclude the disclosure of privileged documents from resulting in waiver in any proceeding

Nature of Case: Alleged breach of insurance policies and violations of various related laws

Electronic Data Involved: ESI

DFSB Kollective Co., Ltd. v. Jenpoo, No. 11-1050 SC, 2011 WL 2314161 (N.D. Cal. June 10, 2011)

Dec 01 2011

Key Insight: Court granted in part motion to conduct expedited discovery for the purpose of identifying alleged copyright infringer(s) and specified the Internet Service Providers to whom subpoenas may be served but declined to allow discovery from entities not sufficiently connected to the allegations or to allow discovery of information related to email addresses not related to the allegations

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information from Internet Service Providers

Pink Lotus Entm?t, LLC v. Does 1-46, No. C-11-002263 HRI, 2011 WL 2470986 (N.D. Cal. June 21, 2011)

Dec 01 2011

Key Insight: After consideration of the four relevant factors to determine whether there is good cause to allow expedited discovery and upon a determination that plaintiff had met its burden, court granted motion to allow expedited discovery for the limited purpose of obtaining indentifying information from alleged infringers? ISPs

Nature of Case: Copyright Infringement

Electronic Data Involved: Identifying information from internet service providers

Pac. Century Int. Ltd. v. Does 1-101, No. C-11-02533-(DMR), 2011 WL 2690142 (N.D. Cal. July 8, 2011)

Dec 01 2011

Key Insight: Upon plaintiff?s showing of good cause, court granted motion for expedited discovery to issue a subpoena to the relevant ISP seeking identifying information regarding one unknown defendant (Doe 1) but denied the motion as to the remaining 100 Does because of improper joinder

Nature of Case: Copyright infringement

Electronic Data Involved: Identifying information for ISP subscriber

Tag:Third Party Discovery