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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
divulging the contents of any communication retained on the service, did not prohibit
civil discovery of text messages electronically stored by the defendant's pager service
provider. The court noted that the defendant's asserted right to control over disclosure of
the messages rendered the defendant subject to the electronic discovery request.
Fleming v. City of New York, 2007 U.S. Dist. LEXIS 90114 (S.D.N.Y. Dec. 7, 2007).
In a discrimination suit brought by a former police officer against the City of New York,
the City failed to produce requested data on disciplinary proceedings and race and gender
of police officers. In response to the plaintiff’s motion for sanctions, the court ordered the
City to pay the plaintiff’s costs in bringing the motion and expert witness expenses, and
excluded defendant expert testimony based on the undisclosed data, but denied the
plaintiff’s request that the court strike the defendant’s answer.
Flexsys Americas, LP v. Kumho Tire U.S.A., Inc., 2006 U.S. Dist. LEXIS 88303
(N.D. Ohio Dec. 6, 2006). In a patent dispute in district court, the plaintiff stated that it
had already produced substantial discovery available to the defendant in a prior
International Trade Commission action. Acknowledging that the parties had not agreed
on the scope of further electronic discovery under the recently adopted federal rules, the
court ordered that further discovery was to be limited to ten individuals designated by the
defendant most likely to have relevant information.
Flying J Inc v. TA Operating Corp., 2008 WL 2003764 (D. Utah May 7, 2008). In an
unfair trade practices case, the defendant requested data identifying all credit card
transactions processed over the plaintiff’s system to counter the plaintiff’s claim that was
the target of an unlawful boycott. The plaintiff objected on the bases of burden,
reasonable accessibility, and the privacy rights of third parties, claiming that any
discovery of electronically stored information would be in violation of an agreement
between the parties to “defer production of ESI drawn from corporate databases.” The
Magistrate Judge interpreted the defendant’s request as one for summaries, not raw data,
in keeping with the parties’ agreement and the privacy interests of third party customers,
and narrowed the temporal scope of the request to the time periods for which accessible
data is available.
Ford Motor Co., et al. v. Edgewood Props., Inc., 2009 WL 1416223 (D.N.J. May 19,
2009). Edgewood Properties (“Edgewood”) sought an order compelling production of all
Ford Motor Company’s (“Ford”) ESI in native format, as opposed to Ford’s preferred
method, the TIFF format. Additionally, Edgewood sought to “confirm the adequacy of
Ford’s manual document collection process” by employing a third party to perform key
word searches on documents outside of the existing ESI. Citing Aguilar v. Immigration
and Customs Enforc. Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 368
(S.D.N.Y.2008), the court held that Edgewood’s request for the entire reproduction of
Ford’s ESI in native format was unreasonable since the application came eight months
after the initial production of discovery. The court also held that Edgewood was not
entitled to its request for an additional search since it failed to make a colorable showing
that Ford had purposefully or negligently withheld documents.
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