Third Party Discovery – Page 8 – Electronic Discovery Law

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

Smyth v. Merchants Credit Corp., No. C 11-1879RSL, 2013 WL 5200811 (W.D. Wash. Sept. 16, 2013)

Dec 01 2013

Key Insight: Court declined to compel re-production of data in native format where no form of production was requested and where the producing non-party had already produced responsive information in hard copy

Nature of Case: debt collection

Electronic Data Involved: ESI

Ameritox, Ltd. v. Millennium Labs., Inc., No. 8:11-cv-00775-T-24 TBM, 2013 WL 5656064 (M.D. Tenn. Oct. 17, 2013)

Dec 01 2013

Key Insight: Court denied defendant’s motion to quash subpoena that sought documents, deposition transcripts and exhibits from third-party that related to defendant and that were produced by defendant in third-party’s now-settled litigation with defendant because defendant failed to comply with local rule requiring submission of a joint written statement of the matters at issue in the discovery dispute; court further noted there was nothing in the record that the target of the subpoena objected to producing the requested documents, and defendant cited no local or procedural rule which prohibited the plaintiff from subpoenaing the information from the third-party before or after plaintiff requested it from defendant

Nature of Case: Motion to quash subpoena issued by plaintiff in case pending in the Middle District of Florida, listing Nashville, Tenn. as the place of production

Electronic Data Involved: Documents, deposition transcripts and exhibits produced by defendant in other, now-settled litigation

Mejia v. Charette, No. 12-cv-449-JD-LM, 2013 WL 6001081 (D.R.I. Nov. 12, 2013)

Dec 01 2013

Key Insight: In the interest of judicial economy and efficiency, Court deferred ruling on plaintiff?s motion to compel to the extent it sought records from Wyatt Detention Facility (a third party), and directed defense counsel to request from the WDF the records plaintiff sought and to report on the status of such request at the next pretrial conference; court further denied defendants? request to limit their obligation to preserve and produce ESI so that they need not maintain that information beyond the regularly scheduled deletion, purge or overwriting date unless they have actual knowledge that responsive information actually is contained in the system or unless opposing party specifically requests it in writing, and to exclude backup tapes from litigation hold, as defendants did not provide any reason why their obligation to preserve all relevant ESI, including backup tapes or disks, should be voided, or why they should be excused from a party?s general duty to preserve relevant evidence once on notice of litigation

Nature of Case: Inmate at Wyatt Detention Facility asserted escessive force claims against four U.S. Marshals

Electronic Data Involved: ESI

Drummond Co., Inc. v. Collingsworth, No. 13-mc-81069-JST (JCS), 2013 WL 6074157 (N.D. Cal. Nov. 18, 2013)

Dec 01 2013

Key Insight: Court evaluated various arguments offered by defendants and email account holders resisting production of requested information and found that defendants did not have standing to move to quash the subpoenas, account holder who was human rights lawyer and US citizen established prima facie case of infringement of her right to freely associate, and other account holders who were non-US citizens did not have First Amendment rights; court limited time frame of certain requests and also determined that, because disclosure of identifying and usage information for the accounts beyond counsel may pose a safety risk to the email account holders and/or their families, defendants were entitled to a protective order prohibiting plaintiff?s counsel from sharing such information beyond counsel of record and their employees

Nature of Case: Motion to quash subpoenas to Google and Yahoo! issued in libel action pending in N.D. Ala.

Electronic Data Involved: Subscriber and usage information associated with four email addresses

IBM Corp. v. ACS Human Servs., LLC, 999 N.E.2d 880 (Ind. Ct. App. 2013)

Dec 01 2013

Key Insight: Trial court did not abuse its discretion when it awarded third party some, but not all, of its discovery costs under court rule where court awarded all costs of non-party?s e-discovery vendor ($355,329) and one-half of non-party?s costs for dedicated document review team ($354,070), basing the 50% reduction on non-party?s ?largely unexplained? delay in producing documents and principles of general equity; nor did trial court abuse its discretion when it awarded IBM $425,179 in sanctions against same third party representing some, but not all, attorneys? fees and other costs IBM incurred as a result of non-party?s failure to comply with discovery orders, as court had authority under court rules and its inherent power to issue sanctions against non-parties, non-party?s resistance to or failure to comply with discovery orders was not substantially justified and sanctions were not otherwise unjust, and non-party?s conduct was sanctionable as IBM filed multiple motions to compel, trial court found that non-party?s opposition was not reasonable, and trial court intervened numerous times in the discovery process to secure non-party?s compliance

Nature of Case: IBM and the State of Indiana filed lawsuits against one another related to the State’s Family and Social Services Administration modernization initiatives

Electronic Data Involved: ESI

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

Hageman v. Accenture, No. 10-1759 (RHK/TNL), 2012 WL 8993423 (D. Minn. Oct. 19, 2011)

Dec 01 2012

Key Insight: Analyzing a question of control, court ruled that where defendant?s employees could access emails/information stored in a third party?s server ?within his or her normal day-to-day work? then that information was within defendant?s control but that information which was not accessible to the employees was no longer in defendant?s control, and thus properly requested using a Rule 45 subpoena

Nature of Case: Employment discrimination

Electronic Data Involved: ESI/emails stored on third party server

In re Application of Wilson & Partners, No. 06-cv-02575-MKS-KMT, 2012 WL 1901217 (D. Colo. May 24, 2012)

Dec 01 2012

Key Insight: Court found that third party failed to establish the reasonableness or necessity of attorney?s fees related to setting up a database to assist in production, including dealing with administrator of that database and thus upheld recommendation against recovery of attorney?s fees; court affirmed recommendation against recovery of costs related to manual review and production that resulted from abandonment of the document database (because of problems with the database) where the Magistrate Judge determined the review was an ?unnecessarily incurred expense, which [the requesting party] had no ability to control or contain;? court adopted recommendation ordering that third party respondents be responsible for half the cost of the database

Fraserside IP LLC v. Gamma Entm?t., —F. Supp. 2d—, 2012 WL 4504818 (N.D. Iowa Sept. 28, 2012)

Dec 01 2012

Key Insight: In dispute over jurisdictional discovery, court concluded that plaintiff was entitled to a ?small slice? of defendant?s Google Analytics data (which tracks and accumulates data related to websites? visitors) related to the number of visitors to defendant?s website(s) from Iowa-based IP addresses; court agreed with plaintiff that it was entitled to ?more? than a hard copy PDF ?screen grab? of the relevant information and indicated that it anticipated production as HTML pages that could be opened with a standard internet browser, but that if that was not an agreeable solution, another hearing would be held

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Google Analytics

Tag:Third Party Discovery