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

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Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 EEOC v. Boeing Co., 2007 WL 1146446 (D. Ariz. Apr. 18, 2007) (Not for publication). The court considered the plaintiff’s motion to compel answers to several topics listed in the plaintiff’s Rule 30(b)(6) deposition notice, including the defendant’s efforts to locate documents and the basis for the defendant’s prior statement that the retrieval of emails responsive to document requests would cost $55,000. The court held that the plaintiff had not established that the defendant’s litigation hold procedure was relevant to the claims or defenses in the litigation and that such inquiry would be denied to the extent that it sought discovery of defense counsel’s legal theories. The court likewise held that relevance had not been established for inquiry into the email retrieval cost estimate, and the court itself had previously gone on record as having “no reason to doubt” the defendant’s estimate. Emmerick v. S&K Famous Brands, Inc., 2007 U.S. Dist. LEXIS 59147 (E.D. Tenn. Aug. 6, 2007). The pro se plaintiff in this employment action moved to compel production of “network backup tapes magnetic or other media etc., containing electronic mail messages, plus other Data relating to sales and sales analysis, payroll, condition of store, losses, scheduling, quotas, customer satisfaction, and other information stored as Electronic Data and or otherwise stored Data that is not in a backed-up format.” The court dismissed the plaintiff’s motion without prejudice for failure to meet and confer in good faith and for failure to follow local procedural rules. Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008). In a suit against a former employee, the plaintiff alleged, and the defendant admitted to, unlawful access to its electronically stored information, resulting in a restraining order and an agreement to allow inspection of the defendant’s home computer system. The parties turned to the court to resolve several issues regarding the search protocol. The court announced its intention to order mirror images to be made of the hard drives, to issue an order regarding privilege, and to require that the examiner submit a written report. Citing U.S. v. O’Keefe, 2008 WL 44972 (D.D.C. Feb. 18, 2008) for the proposition that courts in e-discovery situations benefit from expertise that meets the requirements of Fed. R. of Evid. 702. The court ordered the examiner to submit an affidavit explaining how the search will be conducted. Escobar v. City of Houston, et al., 2007 U.S. Dist. LEXIS 72706 (S.D. Tex. September 29, 2007). In a wrongful death action against a city police department, the plaintiffs sought, inter alia, email communications between officers involved in the 24 hours after the incident. However, after testimony that all email communications are routinely destroyed after 90 days, the plaintiffs sought an adverse inference instruction as a sanction for spoliation. There was further testimony that the police officers involved had no official access to email and seldom used email for work-related communications. The court held that since email was a highly unlikely source of responsive electronically stored information, the city was under no duty to suspend its routine email destruction policy, and in the absence of any demonstrated prejudice to the requesting party, sanctions would be barred by Rule 37(e). Exact Software North America, Inc. v. Infocon, Inc., 479 F. Supp. 2d 702 (N.D. Ohio 2006). In a software sales dispute, the defendant sought default judgment as sanction for Copyright © 2009, The Sedona Conference ® 28 www.thesedonaconference.org
Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 the plaintiff’s failure to produce requested electronic discovery. The plaintiff responded by claiming that the failure was due to the inadequate “key words” supplied by the defendant to conduct the search. The court refused to accept that excuse, stating that the responding party had an independent obligation to produce requested information or seek clarification of the request. A hearing was ordered to determine the extent of the plaintiff’s culpability and whether the default sanction would be appropriate. In re Fannie Mae Securities Litigation, 552 F.3d 814 (D.C. Cir. 2009). In this appeal taken by the Office of Federal Housing Enterprise Oversight (OFHEO) from a contempt order entered against it for failing to comply with a discovery deadline, the Circuit Court of Appeals affirmed the contempt order, holding that the District Court had not abused its discretion. Subpoenas had been issued to the OFHEO, a non-party, in civil litigation seeking “records it collected in performing its oversight functions and preparing its investigative report” of Fannie Mae. Following the entry of an order to compel production, a Rule 30(b)(6) deposition, and a contempt motion arising out of the OFHEO’s failure to produce the requested ESI, the OFHEO entered into an agreement with the subpoenaing parties leading to the designation of over 400 search terms resulting in the identification of 660,000 documents. After further judicial intervention, the OFHEO hired 50 contract attorneys and expended over 9% of its annual budget in an attempt to comply with the production schedule, but could not do so. The District Court concluded that the OFHEO’s efforts were “not only legally insufficient, but too little too late,” held the OFHEO in contempt, and ordered production without waiver of privilege of all documents not logged by the production deadline. Holding the OFHEO to the stipulated agreement, the Court of Appeals noted that the OFHEO could have refused to enter into the agreement, contested the discovery motions, or defied the adverse ruling, thus preserving its rights under Rule 45. Fells v. Virginia Dep’t of Trans., 2009 WL 866178 (E.D. Va. Mar. 25, 2009). In this racial discrimination suit, the defendant was awarded summary judgment and costs as the prevailing party. The defendant claimed that the cost of creating electronically searchable documents, including “electronic records initial processing, [m]etadata extraction, and file conversion,” should be included as “costs” under 28 U.S.C. § 1920. However, the court held that it may not award costs for scanning documents, because scanning was not specifically claimed. The court reasoned that taxable costs under § 1920 did not include processing records, extracting data, and converting files, which served to create searchable documents, rather than scanning and reproducing paper documents in electronic form. Fendi Adele S.R.L. v. Filene's Basement, Inc., 2009 U.S. Dist. LEXIS 32615 (S.D.N.Y. Mar. 24, 2009). In this trademark infringement case for counterfeit bags, the plaintiff filed a motion seeking sanctions against the defendant for multiple alleged discovery omissions. Citing Fed. R. Civ. P. 26(g)(1) and 37(b), the court concluded that defendants repeated and extended discovery failures in locating and producing all of the responsive documents warranted monetary sanctions. The court reasoned that a company of this size and sophistication should be able to maintain and produce more than the sixty documents. However, the court denied plaintiff’s motion to shift plaintiff's cost of Copyright © 2009, The Sedona Conference ® 29 www.thesedonaconference.org
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Federal Court Decisions Involving Electronic Discovery, December 1 ...

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