Third Party Discovery – Page 7 – Electronic Discovery Law

In re Subpoena of Drasin, Advanced Career Techs., Inc. v. Does 1-10, No. ELH-13-1140, 2014 WL 585814 (D. Md. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court granted motion to quash subpoena to administrator of blog on which anonymous users posted disparaging comments about plaintiff because the burdens of the subpoena on the blog administrator — surrendering personal hard drives to plaintiff for up to 30 days, and granting plaintiff access to his personal information on the hard drives — outweighed the very little benefit, if any, that would result from the subpoena, and because the requested information was available from another source, i.e., the blog host, Google

Nature of Case: Defamation, trade libel, commercial disparagement

Electronic Data Involved: Hard drives and servers

Bell Inc. v. GE Lighting, LLC, 6-14-CV-00012, 2014 WL 1630754 (W.D. Va. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court ordered partial cost-shifting of third party?s costs in responding to subpoena upon evaluating several factors, including the third party?s (poor) financial condition, but declined to shift all costs where the third party declined the requesting parties? offer to review the documents – through outside counsel – subject to a clawback agreement (resulting in higher costs) and where the court found the third party was an interested party and that the litigation was not of public importance; court noted in its discussion that ?Courts in this district have found that it is untenable for a party to insist on individually reviewing all documents for privilege and responsiveness, rather than producing documents under a protective order with a claw back provision.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

In re Am. Nurses Assoc., No. 08-CV-0378 2013 WL 588992 (D. Md. Feb. 13, 2013)

Dec 01 2013

Key Insight: Relying on Fed R Civ P 45(c), court granted third party?s request to shift discovery costs related to its search for and production of requested information and noted that the costs could have been controlled had plaintiffs participated in the selection of an e-Discovery vendor more quickly following the court?s original order shifting costs (the Scope of Work and the Estimated Cost Overview had been amended six times) and had plaintiffs sought the at-issue documents from the defendant hospitals first, rather than a third party; court declined to shift all of the third party?s attorneys fees, however, noting that ?[s]ubpoenas are a cost of doing business in today?s society?

Electronic Data Involved: Database contents, ESI

Ubiquiti Networks, Inc. v. Kozumi USA Corp., No. 12-cv-2582 CW (JSC), 2013 WL 1767960 (N.D. Cal. Apr. 15, 2013)

Dec 01 2013

Key Insight: Court found Plaintiff had failed to meet its burden of demonstrating that Kozumi had control over non-party consultant?s emails absent any evidence that defendants could legally compel the non-party to produce the requested documents

Electronic Data Involved: Emails

Lynch v. Math-U-See, Inc., No. 13cv402-GPC (WMc), 2013 WL 2444662 (S.D. Cal. June 4, 2013)

Dec 01 2013

Key Insight: Court declined to quash subpoena based on the burden of reviewing the requested emails prior to production where, because the request sought all messages to or from particular persons, the court determined that no review of the emails was necessary (that is to say, if the email was to or from one of the identified persons, it was responsive to the subpoena and thus subject to production regardless of content); because the movant was a non-party, however, the court indicated its inclination to set a reasonable cost of production, before production was complete, to prevent the responding party from manipulating production to increase the award and to streamline production and ordered the requesting party to pay the responding non-party $420.00 ?as reasonable compensation for compliance?

Electronic Data Involved: Emails

Mycone Dental Supply Co., Inc. v. Creative Nail Design, Inc., No. C-12-00747-RS (DMR), 2013 WL 478053 (N.D. Cal. Sep. 4, 2013)

Dec 01 2013

Key Insight: Court denied third party’s request for return of allegedly privileged letters between third party and its patent lawyer because third party did not promptly take reasonable steps to rectify the error when it sent a clawback letter 49 days after it discovered the disclosure of at least one of the disputed documents during a Rule 30(b)(6) deposition; court rejected third party?s excuses and stated that third party ?should have recalled the document that was used in the deposition immediately after the deposition and then conducted a more thorough and timely investigation into the rest of the production after the initial clawback request?

Nature of Case: Patent infringement

Electronic Data Involved: Nine attorney letters totaling approximately 58 pages

Doe v. City of San Diego, No. 12-cv-0689-MMA (DHB), 2013 WL 2338713 (S.D. Cal. May 28, 2013)

Dec 01 2013

Key Insight: Court found plaintiff had standing to challenge city?s subpoena to Verizon Wireless seeking ?any and all records? for Plaintiff?s cellular phone, including texts, instant messages, etc. and found that Verizon was prohibited from disclosing such content by the Federal Stored Communications Act; Verizon was also prohibited from disclosing non-content records where such disclosure to a ?governmental agency? is prohibited; court noted that alternative methods for discovery were available and specifically noted the availability of a Rule 34 request for production

Nature of Case: Claims arising from sexual assault

Electronic Data Involved: Cellular phone records, including content

In re Denture Care Prods. Liab. Litig., 292 F.R.D. 120 (D.D.C. 2013)

Dec 01 2013

Key Insight: Court found information sought in third party subpoena was relevant, that production of documents with missing pages or emails without their attachments did not comply with Rule 45, that subpoena was not unduly burdensome, and that forensic investigation of third party?s computers was not yet warranted in spite of ?discrepancies and inconsistencies? in their production, but warned that third party could be required to bear the cost of forensic investigation of their computers if they failed to comply with court?s order to produce all responsive documents

Nature of Case: Products Liability

Electronic Data Involved: ESI

Maximum Human Performance, LLC v. Sigma-Tau Healthscience LLC, No 12-cv-6526-ES-SCM, 2013 WL 4537790 (D.N.J. Aug. 27, 2013)

Dec 01 2013

Key Insight: Upon third party?s objection to Defendant?s subpoena and its motion for cost shifting, the court found that the third party both had an interest in the litigation and an ?ability to pay all or most of the costs to comply with the subpoena? but nonetheless concluded that ?it would not bear all of the costs of compliance? and thus ordered the third party to select an e-Discovery vendor to search the key words agreed upon and ordered that Defendant shall reimburse the third party ?one third of the vendor costs to harvest the electronically stored information?

Nature of Case: Product liability

Electronic Data Involved: ESI

West Penn Allegheny Health Sys. v. UPMC, No. 2:09-cv-00480-JFC, 2013 WL 12134101 (W.D. Pa. Feb. 15, 2013)

Dec 01 2013

Key Insight: Where a non-party resisted production of requested information arguing that it could be more easily obtained from elsewhere and that production would impose an undue burden, including an estimated $38,00 in personnel costs alone, the court reasoned that there was no rule prohibiting Plaintiff from seeking documents from a non-party that were also likely to be in Defendant?s possession and, addressing the alleged burden, rejected arguments based on the documents? lack of organization (?less than optimal recordkeeping? did not rise to the level of ?undue burden?); where the requesting party offered to pay the costs of collection and review (by outside counsel), court rejected non-party?s privacy concerns in light of the protective order and recommended that if the non-party rejected the cost sharing offer, he should be required to pay for production himself; motion to quash denied

Electronic Data Involved: ESI

Tag:Third Party Discovery