Third Party Discovery – Page 18 – Electronic Discovery Law

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

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

In re McKesson Governmental Entities Average Wholesale Price Litig., 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where government agency objected to defendants? subpoena for the production of documents previously produced in a separate litigation on grounds of undue burden and cost based on the assertion that it needed to re-review all documents prior to production because some documents were subject to the deliberative process privilege and others were highly confidential, court held that the privilege had been waived by the agency?s failure to object in its initial response and by the production in separate litigation, ordered the documents produced under the POD ?Confidential, For Outside Attorney Eyes Only? and ordered defendants to bear the costs ?of copying and producing the documents in electronic form?

Nature of Case: Allegations that defendants artificially increased the published price of prescription drugs

Electronic Data Involved: ESI previously produced in separate litigation and maintained in database by third party

Johnson v. U.S. Bank Nat?l Assoc., 2009 WL 4682668 (S.D. Ohio Dec. 3, 2009)

Dec 01 2009

Key Insight: Court granted motion to serve preservation subpoena on third-party prior to the Rule 26(f) conference where plaintiff showed good cause for such a subpoena, including the potential relevance of the documents and the danger of spoliation where the company had been ?dormant? since 2006, and where the subpoena was narrowly tailored to prevent spoliation and did not impose an immediate obligation to produce documents

Nature of Case: Class action

Electronic Data Involved: ESI

Amobi v. D.C. Dep?t of Corrs., 262 F.R.D. 45 (D.D.C. 2009)

Dec 01 2009

Key Insight: In this opinion authored by Magistrate Judge Facciola, the court conducted an analysis of waiver pursuant to FRE 502 and found that the attorney work-product privilege was waived by the inadvertent production of an attorney-prepared memorandum where defendants claimed ?several reviews of the documents?were undertaken? but offered no indication of the methodology used to review documents for privilege ?let alone any explanation of why these efforts were?reasonable in the context of the demands made upon the defendants? and thus failed to meet their burden of proving that the privilege was not waived

Nature of Case: Claims arising from DOC officer’s removal from duty following an altercation with an inmate

Electronic Data Involved: Attorney-prepared memorandum

Sony BMG Music Entm?t v. Doe, 2009 WL 5252606 (E.D.N.C. Oct. 21, 2009)

Dec 01 2009

Key Insight: Considering the five factors established in Sony Music Ent. v. Does 1-40, 326 F.Supp.2d 556(S.D.N.Y. 2004) to determine whether an anonymous defendant?s identity is shielded from discovery by the first amendment (in circumstances such as those presented here), court denied a motion to quash the subpoena seeking anonymous defendant?s identity where plaintiffs made a concrete showing of a prima facie claim, where the subpoena was narrowly drawn and sought limited information, where there was no alternate means of identifying the defendant, where the information was necessary to effect service on the defendant and where ?defendant has little expectation of privacy in allegedly distributing music over the internet without permission of the copyright holder?

Nature of Case: Copyright infringement

Electronic Data Involved: Identity of alleged John Doe infringer

Bass v. Miss Porter?s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009)

Dec 01 2009

Key Insight: Upon in camera review of all documents produced to plaintiff by Facebook pursuant to subpoena, and in response to plaintiff?s objection to producing all such documents on the grounds that many were irrelevant and immaterial, court found ?no meaningful distinction? between the pages produced and the pages withheld and stated that ?Facebook usage depicts a snapshot of the user?s relationship and state of mind at the time of the content?s posting? and that ?relevance is more in the eye of the beholder? such that production should not be limited to plaintiff?s determination of what may be ?reasonably calculated to lead to the discovery of admissible evidence? and ordered the production of all documents produced by Facebook to defendants, rather than the smaller subset previously provided

Nature of Case: Claims arising from alleged bullying and harassment of private school student

Electronic Data Involved: Facebook

Whatman v. Davin, 2009 WL 4808807 (D.S.C. Dec. 9, 2009)

Dec 01 2009

Key Insight: Where defendant?s employee admitted to using her personal computer to work from home and plaintiff thereafter sought to compel defendant?s production of that computer, court found that ?plaintiff?s informal request for a forensic copy of [employee?s] personal home computer does not impose upon the defendants the burden of producing property outside its possession and control? and therefore denied plaintiff?s motion to compel

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Employee’s personal computer

Snoznik v. Jeld-Wen, 259 F.R.D. 217 (W.D.N.C. 2009)

Dec 01 2009

Key Insight: Where testifying expert created and utilized electronic templates which he considered proprietary to create his report, court granted expert?s motion for a protective order and declined to compel production of the templates upon finding that the templates were not relevant to the actual issues at trial, that the defendant failed to show a need for the templates in light of expert?s production of underlying data used to create his report, that the expert properly sought a protective order to address the issues of confidentiality, and that the potential harm to the expert outweighed the potential (non-existent) harm to defendant

Nature of Case: Negligence, breach of implied warranty and express warranty and loss of consortium

Electronic Data Involved: Electronic templates used to create expert report

Brown v. Coleman, 2009 WL 2877602 (S.D.N.Y. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where expert witness destroyed relevant surgical logs and resisted production of alternative evidence upon the objection that a review of all patient files would be unduly burdensome, court denied motion to compel production of the logs but ordered that as a sanction for spoliation, the expert would not be allowed to testify as to the number of fat grafting procedures he had performed, and would have to be qualified as an expert based on other information

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical records

Tag:Third Party Discovery