Federal Court Decisions Involving Electronic Discovery, December 1 ...

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
Bank of Mongolia v. M & P Fin. Serv., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24,
2009). In this civil RICO action, the defendants failed to respond to discovery requests,
did not search deleted files for discoverable ESI, and could not explain what
methodology had been utilized to search for ESI. The court appointed an independent
expert to make a mirror image the defendants’ computer system and established a
protocol for the expert and the parties to follow in searching the image.
Bedwell v. Fish & Richardson P.C., 2007 U.S. Dist. LEXIS 88595 (S.D. Cal. Dec. 3,
2007). In an employment action brought by a paralegal against a law firm, the defendant
sought an order requiring return of documents that the plaintiff had taken with her upon
leaving the firm, including time sheets and copies of email. The court ordered that time
sheets and emails with references to clients or services performed for clients be returned.
The court declined to order return of non-privileged, non-confidential email relating to
the paralegal's status as a firm employee.
Bensel, et. al v. Air Line Pilots Ass’n et al., 248 F.R.D. 177 (D.N.J. 2008). In an action
brought by former TWA pilots against the defendant union, the defendant moved to
compel the plaintiffs to disclose 25 documents that had previously been produced in
discovery by prior class counsel. These consisted of correspondence between one or more
plaintiffs and counsel. The court noted that the Third Circuit had not specifically
addressed the standard for determining whether inadvertent production gave rise to a
waiver, but adopted the five-part test adopted in Ciba-Geigy Corp. v. Sandoz Ltd., 916 F.
Supp. 404 (D.N.J. 1995). The court held that the disclosure was inadvertent but that the
privilege had been waived. There was no evidence of precautions taken to prevent
inadvertent disclosure, that the number of documents disclosed was significant (155
pages out of a total production of 6,000), and no circumstances relieved plaintiffs of their
error. The court also held that the scope of waiver did not extend to related documents.
Benton v. Dlorah, Inc., 2007 WL 2225946 (D. Kan. Aug. 1, 2007) (“Benton I”). In an
employment discrimination suit brought by a university instructor, the defendant moved
to compel the plaintiff to produce her computer hard drive for inspection and copying,
after the plaintiff admitted to deleting emails between herself and her students in the past.
The court found no evidence of spoliation “beyond speculation,” and it denied the
defendant’s motion without prejudice.
Benton v. Dlorah, Inc., 2007 U.S. Dist. LEXIS 80503, 2007 WL 3231431 (D. Kan.
Oct. 30, 2007) (“Benton II”). In this employment discrimination suit brought by a
university instructor, the defendant renewed a prior motion (see “Benton I” above) to
compel the plaintiff to produce her personal computer for inspection by a forensic
specialist and sought sanctions for alleged deletion of email. The plaintiff objected,
claiming the hard drive contained personal information beyond the scope of discovery,
but admitted to having used the computer to send, receive, and delete hundreds of
potentially responsive e-mails with her husband and students. The court granted the
defendant’s request, limited in scope to topics responsive to the production requests, and
it ordered the plaintiff to pay $1,000 to reimburse the defendants for costs. However, the
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