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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
employees’ circumstances was relevant to Sprint’s discriminatory intent,” and therefore
the requested documents were within the broad scope of discovery. However, the court
considered each request separately and applied the limitations of privilege and
proportionality under Rule 26(b)(2). Among the cost considerations taken into account by
the court was the estimated cost of review. The court denied several requests outright;
narrowed the remaining requests; and allowed discovery under a protective order “in the
form in which [the ESI] is currently maintained, but in electronic format to the extent
possible.”
Bonn v. City of Omaha, et al., 2009 WL 1740783 (D. Neb. June 18, 2009). In a
wrongful discharge action, plaintiff sought to compel production of all email associated
with defendants’ two executives and all correspondence between defendants and an
associated third party. In response, defendants alleged that the requested emails had
already been searched using relevant key terms, and that the third party emails were
“necessarily irrelevant.” Applying Federal Rule 26(b)(2)(B) & (C), the court held that the
cost and burden of further exploration of the defendants’ ESI outweighed the likely
benefit of such a search. However, the court rejected the defendants’ contention that the
third party communications were irrelevant and ordered the third party to produce all
written communication. The defendants were not ordered to produce any further
electronic discovery.
Bray & Gillespie Management LLC, et al. v. Lexington Ins. Co., et al., 2009 WL
546429 (M.D. Fla March 4, 2009). In this action, the owner and operator of resorts in
Florida filed suit against its insurer to recover damages to its properties caused by three
hurricanes. The insurance company disputed whether the damages claimed were the
result of three separate “occurrences” under the policy. The plaintiff, in preparation for
litigation, downloaded ESI in native format, converted it to TIFF images and, in the
process, failed to capture relevant metadata. The defendants objected to the plaintiff’s
production of the TIFF images and moved to compel production of the ESI in native
format. Deciding this latest in a series of motions by the defendants, the court held that
the production was not in the form requested by them, that the ESI was not in a
reasonably useable form, that the plaintiff and its attorney concealed information and
made material misrepresentations, and that monetary and other sanctions were warranted
against the plaintiff and various of its attorneys. The court noted that the plaintiff, “as the
client, has the obligation to supervise its lawyers,” that an inside counsel cannot blindly
rely on outside counsel, and that outside counsel acted in bad faith. Finally, the court
advised that it would issue an order to show cause why one attorney should not be
personally sanctioned.
Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater N.Y., 2009
WL 393644 (E.D.N.Y. Feb. 13, 2009). The defendant sought reconsideration of an order
requiring them to return or destroy inadvertently produced documents and prohibiting
them from making use of the information contained therein. On the motion for
reconsideration, the court stated that it is “closing and locking the door” and held that it
would not entertain any argument on documents that might have been inadvertently
produced by the plaintiff. The court also held that a confidentiality agreement between
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