Key Insight: Court granted motion to serve expedited discovery on Doe #1?s Internet Service Provider seeking information sufficient to identify the Doe for service but severed Does 2-2099 from the case upon finding that they had been improperly joined
Nature of Case: Copyright infringement
Electronic Data Involved: Identifying information for ISP subscribers
Key Insight: Court found plaintiff had shown good cause and granted motion to serve expedited discovery on the identified Internet Service Providers of Does 1-21 for the purpose of learning the identity of the Does for service
Nature of Case: Copyright infringement
Electronic Data Involved: Names and contact information for ISP subscribers
Key Insight: Addressing the obligation of a non-party to produce ESI that was deleted through ?normal business operations?, the court found that the Naussau Guidelines provided the best approach to determine the third party?s obligation to produce allegedly inaccessible data where the guidelines called for a cost/benefit analysis involving the difficulty of the production at issue; court found plaintiff had shown ?good cause? for needing the requested ESI but that there was insufficient evidence of the non-party?s alleged burden of production (including, for example, whether the at-issue ESI had actually been deleted, whether it could actually be retrieved, the cost of such retrieval, etc.) and thus remanded the case to the Supreme Court for ?a hearing on whether the information plaintiff seeks is ?inaccessible? and hence whether [the non-party] has the ability to comply with the subpoena; the appellate court reversed the Supreme Court?s ruling holding the non-party in contempt for failure to comply with a judicial subpoena
Nature of Case: Defamation
Electronic Data Involved: Identity of all persons who accessed the internet using a certain computer or internet portal on a certain day
Key Insight: Court denied non-party?s motion to quash defendant?s subpoena where defendant adequately narrowed its request and where the non-party failed to establish that the burden of responding was undue, including by failing to provide particulars related to the expected burden of responding; court?s analysis closely followed standard set forth in Rule 26(b)(2)(C)(iii)
Nature of Case: DOJ investigation
Electronic Data Involved: ESI
Key Insight: Where third party objected to plaintiff?s subpoena as overly broad and burdensome but nevertheless undertook a limited search which resulted in the identification of zero documents, but where plaintiff argued the search was halfhearted and that additional searching was required, the court took notice of objective of the recently adopted Model Order on E-Discovery in Patent Cases and indicated its applicability to third parties and thereafter ordered plaintiff to provide the non-party with five search terms to be utilized in additional searching and that plaintiff would bear the costs of any terms beyond the limits agreed to by the parties or granted by the court
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Key Insight: Where, prior to being named a party to the action, defendant failed to preserve ESI (including failing to pay a vendor for imaging her hard drive, which resulted in the vendor’s destruction of the image) despite the receipt of two subpoenas, where the court found the spoliation to be at least willful, and where the circumstances surrounding the spoliation permitted an inference that the information destroyed was highly relevant to the litigation, court found an entry of default was appropriate and set a hearing to determine the appropriate damages
Nature of Case: Tortious interference with a contract, breach of contract, defamation, etc. arising from anonymous emails sent to several parties
Electronic Data Involved: ESI, hard drive
Key Insight: For ?discovery misconduct? including failing to issue a litigation hold; admitted deletion of documents; and failure to promptly search certain repositories for responsive information, including a computer utilized by an individual defendant at an unrelated corporation for which he was an officer (but which he used for matters unrelated to that corporation, including for correspondence related to the underlying lawsuits) and the computer of the same individual?s secretary (albeit at yet a third company which was also a defendant), the court ordered monetary sanctions ?to reimburse Plaintiff?s expenses costs, and reasonable attorney?s fees?
Nature of Case: Bankruptcy
Electronic Data Involved: ESI
Key Insight: Following discussion of the breadth of original requests and subsequent narrowing of scope, court addressed duty of defendant to produce evidence from third-party who provided defendant with mortgage-related documents and from independent agents and ordered production from those parties where evidence indicated that at least some agents had contractually agreed to produce documents thus evidencing defendant?s control and where provider of mortgage-documents did not object to disclosure
Nature of Case: Class action
Electronic Data Involved: ESI from third parties
Key Insight: Court granted motion to quash subpoena issued pursuant to 28 U.S.C. ? 1782 upon finding the subpoena was unduly burdensome because of the time and/or cost that would be required to retrieve the information requested from the non-profit organization?s server, particularly in light of the availability of the information from the organization?s publically available website, and where the request implicated the First Amendment rights of the organization?s members who were subject to a privacy policy that assured them that their private information would be protected
Nature of Case: Foreign prosecution involving claims of libel and slander
Electronic Data Involved: ESI, messages from online forum(s)(stored in Structured Query Language)
Key Insight: Court found reasonable expectation of privacy existed as to cumulative cell-site-location records such that they were protected by the Fourth Amendment and denied the Government?s motion pursuant to 18 U.S.C. ? 2703(c)(1) and (d) which sought two orders directing Verizon Wireless to disclose the cell-site-location records pursuant to the Stored Communications Act
Electronic Data Involved: Cell-site-location records
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