Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Although court found it “bothersome” that it no attempt at all was made by some of the founders to search, even on a random basis, their personal or office emails, balancing the burden on the founders of conducting full email searches of their non-@hssh.org email accounts against the likelihood that such searches would recover few, if any, additional documents not already produced by Heartland, court declined to require founders to conduct any searches of their personal email accounts in responding to subpoenas
Nature of Case: Antitrust and tortious interference litigation
Electronic Data Involved: Personal email accounts of plaintiff’s founders
Key Insight: Magistrate judge adopted special master’s recommendations regarding motion to compel production of source code, and ordered Chronotek to produce the portions of its source code, if any, that incorporated particular technology subject to an appropriate protective order, or, if source code did not incorporate particular technology at issue, affidavit of knowledgeable person attesting to same
Nature of Case: Patent litigation
Electronic Data Involved: Source code
Key Insight: Court rejected non-party’s claim that it was entitled to recover full amount of fees expended to retrieve, identify and review 25 project files sought by plaintiffs (estimated to be $28,950, including $18,750 in attorneys fees for 50 hours of review), since non-party should have reasonably anticipated being involved in the discovery process of subsequent litigation concerning the marketing/prescribing behavior it studied, the cost could be borne by the non-party as overhead, and cost was less than four fifths (4/5) of one percent of the revenue the non-party generated from work on Seroquel products
Nature of Case: Drug product liability class action
Electronic Data Involved: 25 electronically-maintained project files relating to market research that non-party Harris performed on behalf of AstraZeneca with respect to Seroquel
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
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
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
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
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
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
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