Tag:Third Party Discovery

1
Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323 (10th Cir. 1981)
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City of New York v. Beretta U.S.A. Corp., 222 F.R.D. 51 (E.D.N.Y. 2004)
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Dow Chem. Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982)
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First USA Bank, N.A. v. Paypal, Inc., 76 Fed.Appx. 935, 2003 WL 22071558 (Fed. Cir. Aug. 21, 2003)
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Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)
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Nicholas v. Windham Int’l, Inc., 373 F.3d 537 (4th Cir. 2004)
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S. Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002)
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Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), amending 341 F.3d 978 (9th Cir. 2003), cert. denied, 543 U.S. 813 (2004)
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In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000)
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McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323 (10th Cir. 1981)

Key Insight: Subpoena seeking non-party’s software trade secrets enforced since trade secrets were relevant and necessary to patent suit and need for information outweighed possible injury to third party

Nature of Case: Patent infringement

Electronic Data Involved: Software trade secrets of third party

City of New York v. Beretta U.S.A. Corp., 222 F.R.D. 51 (E.D.N.Y. 2004)

Key Insight: Court denied BATF’s motion to quash subpoenas since firearms tracing and licensing data maintained by BATF in federal databases was relevant and would be subject to a confidentiality order, and disclosure of the data was not precluded by appropriations statute or by law enforcement privilege

Nature of Case: City and families of shooting victims sued manufacturers, distributors and retailers of weapons

Electronic Data Involved: Database maintained by Bureau of Alcohol, Tobacco, Firearms and Explosives

First USA Bank, N.A. v. Paypal, Inc., 76 Fed.Appx. 935, 2003 WL 22071558 (Fed. Cir. Aug. 21, 2003)

Key Insight: Former CEO of defendant subpoenaed and ordered to appear for deposition and produce his laptop computer for forensic inspection pursuant to court’s approved search protocol; CEO’s appeal of the nonfinal interlocutory order was dismissed

Nature of Case: Patent infringement

Electronic Data Involved: Laptop

Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)

Key Insight: Federal database containing firearms tracing and licensing data which was maintained by Bureau of Alcohol, Tobacco & Firearms was relevant to plaintiffs’ claims, and was not protected by any law enforcement privilege when produced subject to an order of confidentiality; motion to quash subpoena denied

Nature of Case: Negligence action against manufacturers, distributors, and retailers of weapon used in robbery

Electronic Data Involved: Database maintained by Bureau of Alcohol, Tobacco, Firearms and Explosives

Nicholas v. Windham Int’l, Inc., 373 F.3d 537 (4th Cir. 2004)

Key Insight: No abuse of discretion to deny enforcement of subpoena directed to plaintiffs’ nonparty company where defendants had already deposed plaintiffs and conceded that the company would have no additional information, plaintiffs would be designated Rule 30(b)(6) witnesses if discovery were allowed, and plaintiffs had already produced email from their business accounts and remained under a continuing obligation to supplement their earlier productions

Nature of Case: Ancillary proceeding to enforce subpoena

Electronic Data Involved: Email

S. Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002)

Key Insight: Appellate court granted writ and quashed trial court’s order granting party’s motion for leave to inspect non-party’s computer system; remanded with directions to trial court to craft a narrowly-tailored order that sets parameters and limitations on the inspection

Nature of Case: Insurance bad faith

Electronic Data Involved: Computer system; records of payments to physicians

Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), amending 341 F.3d 978 (9th Cir. 2003), cert. denied, 543 U.S. 813 (2004)

Key Insight: Defendant’s subpoena to ISP of plaintiff, which sought all copies of all email sent or received by anyone at plaintiff with no limitation as to time or scope, was “massively overbroad,” “patently unlawful,” and “transparently and egregiously” violated federal rules; besides warranting sanctions in underlying suit, subpoena was grounds for separate action by employees of plaintiff against defendant for violation of federal Stored Communications Act and Computer Fraud and Abuse Act, and state law

Nature of Case: Violation of federal electronic privacy and computer fraud statutes

Electronic Data Involved: Email stored by Internet Service Provider

In re Tyco Int’l, Ltd. Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000)

Key Insight: Plaintiffs allowed to serve appropriately-worded subpoenas on certain third parties for limited purpose of giving notice of action and placing them under duty to preserve relevant evidence

Nature of Case: Securities fraud

Electronic Data Involved: Unspecified electronic data of third parties

McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice

Electronic Data Involved: Email and hard copy documents

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