Third Party Discovery – Page 22 – Electronic Discovery Law

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Auto. Inspection Servs., Inc. v. Flint Auto Auction, Inc., 2007 WL 3333016 (E.D. Mich. Nov. 9, 2007)

Dec 01 2007

Key Insight: Though plaintiff?s counsel?s conduct in failing to give notice to defendant prior to executing subpoena and inspecting and copying two laptop computers of non-party was ?a flagrant abuse of the subpoena power and bad faith,? sanction of dismissal was too harsh and court instead imposed “sizeable” monetary sanction

Nature of Case: Breach of licensing agreement

Electronic Data Involved: Hard drives of two laptops owned by non-party

Solow v. Aspect Res., LLC, 2007 WL 3256944 (Del. Ch. Oct. 30, 2007)

Dec 01 2007

Key Insight: Where nonparty merely asserted, without adequate factual support, that compliance with the subpoena would cause it to incur ?significant expenses,? court denied nonparty?s request for costs for time spent by its employees configuring and executing electronic search and by attorneys reviewing results of search

Nature of Case: Breach of limited partnership agreement

Electronic Data Involved: Unspecified ESI

Crutcher v. Fidelity Nat’l Ins. Co., 2007 WL 430655 (E.D. La. Feb. 5, 2007)

Dec 01 2007

Key Insight: Court declared subpoena invalid because requirements of Rule 26(d) apply to subpoenas issued to non-parties, and parties’ written correspondence did not satisfy the requirements of Rule 26(f) to meet, confer, and develop a discovery plan

Nature of Case: Insurance coverage

Electronic Data Involved: Hurricane damage evaluation materials prepared by third party

Guy Chem. Co., Inc. v. Romaco AG, 243 F.R.D. 310 (N.D. Ind. 2007)

Dec 01 2007

Key Insight: Where non-party used outside computer firm to handle its electronic data and estimated that cost to comply with subpoena would be $7,200, court found that data was “not reasonably accessible because of undue burden or cost” but ordered production in light of good cause shown, with cost of production to be paid by party who issued subpoena

Nature of Case: Breach of contract

Electronic Data Involved: Routine business documents stored electronically

Frees, Inc. v. McMillian, 2007 WL 708593 (E.D. Tenn. Mar. 5, 2007)

Dec 01 2007

Key Insight: Where first tier of discovery showed numerous similarities between certain CAD files, drawing and specifications maintained by the parties, court found that second tier of limited additional discovery was warranted and ordered defendant’s current employer to produce materials relating to four additional projects; court further entered order on parties’ agreement relating to forensic imaging of current employer’s computer servers and desktops at plaintiff’s expense

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Computer files

Tomlinson v. El Paso Corp., 245 F.R.D. 474 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court rejected defendants’ claim that they had no control over third party’s ?computerized infrastructure? and ordered production of electronic pension plan records by defendants; because ERISA sets out employer’s responsibilities for the proper maintenance and retention of pension and welfare plan records and employer cannot delegate those duties, records maintained by third party were in “possession, custody or control” of defendants for purposes of discovery

Nature of Case: Claims under ERISA

Electronic Data Involved: Pension and welfare plan records maintained by third party

Claredi Corp. v. Seebeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007)

Dec 01 2007

Key Insight: Where plaintiff showed that defendant failed to produce hundreds of responsive emails which plaintiff ultimately obtained through third-party discovery, court found defendant’s discovery conduct to be dilatory and inadequate and imposed sanction of $54,000 for plaintiff’s attorneys’ fees, and another $20,000 payable to the court as sanction for unnecessarily prolonging and increasing the expense of the litigation

Nature of Case: Breach of contract

Electronic Data Involved: Email and other electronic documents

Corvello v. New England Gas Co., Inc., 243 F.R.D. 28 (D.R.I. 2007)

Dec 01 2007

Key Insight: Court concluded that any privilege that may have attached to documents inadvertently produced on CD was waived, since non-party?s counsel failed to exercise due care when he produced CD without first reviewing it, failed to immediately accept party?s offer to temporarily halt its document review after he was alerted that some of the documents on CD appeared to be internal communications with counsel, and furnished an inadequate privilege log after two-week delay

Nature of Case: Litigation between gas company and landowners

Electronic Data Involved: Privileged documents inadvertently produced on CD

ACS Consultant Co., Inc. v. Williams, 2007 WL 674608 (E.D. Mich. Mar. 5, 2007)

Dec 01 2007

Key Insight: Court quashed subpoena issued by plaintiff directing YAHOO! Inc. to produce all emails sent or received by individual defendant during specific time period in light of privacy and privilege concerns, but advised that plaintiff could obtain a new subpoena that was limited in scope

Nature of Case: Breach of employment agreement and wrongful termination

Electronic Data Involved: Email

Tag:Third Party Discovery