Third Party Discovery – Page 16 – Electronic Discovery Law

Goshawk Dedicated, Ltd. v. Amer. Viatical Servs., LLC, 2010 WL 5250360 (N.D. Ga. Oct. 4, 2010)

Dec 01 2010

Key Insight: Clarifying the nature of its order regarding costs, court stated that its prior order requiring plaintiff to deposit funds into the court registry sufficient to cover the third party?s anticipated costs of producing ESI specifically excluded attorney?s fees but did not preclude recovery of them, and ordered compliance with its prior order

Nature of Case: Fraud and negligence claims

Electronic Data Involved: ESI

Nycomed U.S. Inc. v. Glenmark Generics, Ltd., 2010 WL 3173785 (E.D.N.Y. Aug. 11, 2010)

Dec 01 2010

Key Insight: For failing to abide by its good-faith discovery obligations by withholding from production, without justification, certain relevant ESI and ?willfully fail[ing] to search two important and obvious repositories for responsive ESI?, the court determined that ?substantial monetary fines, payable to Nycomed and to the Clerk of the Court, are appropriate sanctions, as they will adequately advance ?the prophylactic, punitive and remedial rationales? of discovery sanctions? and ordered Glenmark to pay $100,000 to Nycomed ?to cover a portion of its costs? and to pay an additional $25,000 to the Clerk of the Court

Electronic Data Involved: ESI

In re IKB Deutsche Industrie Bank AG, 2010 WL 1526070 (N.D. Ill. Apr. 8, 2010)

Dec 01 2010

Key Insight: Denying third-party corporation?s motion to quash a subpoena, court rejected corporation?s claims of undue burden where the discovery sought was relevant to the foreign litigation and where the support for claims of burden was conclusory and failed to sufficiently identify the basis for the corporation?s objection or ?connect a dollar amount to the particular tasks that would be necessary to provide the requested information? and thus, the court was ?effectively prevented from making a meaningful determination as to whether the financial costs is unreasonable?

Nature of Case: Foreign litigation claiming $1.5 billion in damages arising from “Put Option Agreement”

Electronic Data Involved: ESI

Hunsaker v. Proctor & Gamble Mfg. Co., 2010 WL 5463244 (D. Kan. Dec. 29, 2010)

Dec 01 2010

Key Insight: Where defendant sought leave to serve a subpoena upon a public library seeking information related to plaintiff?s internet use to confirm his alleged job seeking activities, the court found the subpoena overly broad on its face and found that even a more limited subpoena would impose a burden and expense outweighed by the likely benefit; court found proposed subpoenas to internet job search sites (e.g. Monster) would result in an undue burden in light of the expansive definition of document, but that defendant would be allowed to serve the subpoenas if the list of ?definitions? was removed

Nature of Case: Violations of ADEA and ADA

Electronic Data Involved: ESI related to online job searches

Viacom Int?l, Inc. v. YouTube Inc., 2009 WL 102808 (N.D. Cal. Jan. 14, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of third party?s materials related to plaintiffs despite objections where documents sought were relevant and where the alleged burden was insufficient in light of probable reimbursement to third party by plaintiffs, plaintiffs? performance of the necessary privilege review, and third party?s prior success in reducing the volume of responsive documents; where defendants sought third party material unrelated to plaintiffs, court ordered defendants and third party to meet and confer regarding scope of production and ordered defendants to bear the cost; court also ordered meet and confer regarding format of production, including specific consideration of granting defendants access to Kroll database where documents were stored

Nature of Case: Copyright infringement

Electronic Data Involved: ESI

N.A. Rescue Prods., Inc. v. Bound Tree Medical, LLC, 2009 WL 4110889 (S.D. Ohio Nov. 19, 2009)

Dec 01 2009

Key Insight: Where third party sought sanctions/costs and attorney?s fees for plaintiff?s alleged violation of its obligation to avoid the imposition of undue burden or expense on a non-party following the third party?s expenditure of more than $50,000 in responding to plaintiff?s subopoena (including the cost of converting electronically stored information for review), court denied third party?s motion where plaintiff?s subpoena sought relevant documents within a reasonable time frame and where third party voluntarily complied with the subpoena without conditioning its compliance on reimbursement

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI

In re Apotex, Inc., 2009 WL 618243 (S.D.N.Y. Mar. 9, 2009)

Dec 01 2009

Key Insight: Concluding that discovery requests were unduly intrusive and burdensome, court vacated grant of permission to obtain discovery for use in Canadian litigation and quashed the resulting subpoena because responding to the subpoena would require substantial effort on the part of a non-party because of the passage of time, because relevant data was not readily available from a database, as anticipated, due to the organizational structure of the database, and because a privilege review requiring subs6tantial resources would likely need to be undertaken

Nature of Case: Canadian litigation

Electronic Data Involved: ESI from database

Carolina Materials, LLC v. Continental Cas. Co., 2009 WL 4611519 (W.D.N.C. Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production

Nature of Case: Insurance contract dispute

Electronic Data Involved: ESI on relevant computers and servers

Hope for Families & Cmty. Servs., Inc. v. Warren, 2009 WL 1066525 (M.D. Ala. Apr. 21, 2009)

Dec 01 2009

Key Insight: Court found emails withheld by non-party independent contractor were protected by attorney-client privilege (and work product in some cases) where independent contractor acted as representative of plaintiff for purpose of securing bingo license from the county and was authorized to communicate with counsel on plaintiff?s behalf, among other things, and where the subject communications satisfied the five-prong test borrowed from the ?corporate employee context? requiring that the communication was made for the purpose of securing legal advice for the corporation, at the direction of the corporation, that the subject of the communication was within the scope of the independent contractor?s duties, and that the communication was not disseminated beyond persons needing to know its contents; court found common interest doctrine applicable where non-party and plaintiff?s interests were identical pursuant to the terms of their consulting contract and the nature of their relationship

D.M. v. J.E.M., 873 N.Y.S. 2d 447 (N.Y. Fam. Ct. 2009)

Dec 01 2009

Key Insight: Finding ?no demonstration of legal prejudice, or that it is unreasonable or burdensome to respondent to be required to execute such an authorization? and ?[i]n aid of the policy of compelling the production of evidence at trial,? court granted petitioner?s motion for order requiring respondent to sign authorization required by Yahoo! to release information related to respondent?s email account; finding the authorization too broad, court dictated revised language to be incorporated prior to signing

Nature of Case: Family offense proceeding alleging father sent mother vulgar messages and made false allegations of child abuse

Electronic Data Involved: Email

Tag:Third Party Discovery