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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
employees and make forensic images to determine in any relevant data had been deleted
in violation of court preservation orders. The trial court’s order extended beyond the
state’s servers and hard drives of state employees in their offices to include home
computers, and authorized the court-appointed monitor, plaintiff expert, and U.S.
Marshal to visit the homes of the 50 affected state employees to execute the order. The
defendants petitioned the Sixth Circuit Court of Appeals for a Writ of Mandamus, which
the court granted, finding the district court’s order to be “clearly erroneous as a matter of
law.” Citing The Sedona Principles and Rules 37(a) and (e), the court noted that it is the
responsibility of the responding party to preserve and produce relevant information, and
“mere skepticism that an opposing party has not produced all relevant information is not
sufficient to warrant drastic electronic discovery measures” such as forensic examination.
The court further found that the district court’s orders “fail to account properly for the
significant privacy and confidentiality concerns present in this case” and “implicate
federalism and comity considerations not present in typical civil litigation.”
Johnson v. Big Lots Stores, Inc., 2008 WL 2191357 (E.D. La. May 7, 2008). In a
wage-and-hour class action lawsuit, the plaintiffs objected to the Magistrate Judge’s order
denying the their request to take a deposition of the defendant’s representatives under
Rule 30(b)(6) two days before the close of discovery, to inquire into the defendant’s data
preservation and collection efforts. Stating that “e-discovery matters are no longer the
novel issues they once were… there is no legitimate excuse for plaintiff’s failure…” the
District Judge sustained the Magistrate Judge’s order.
Johnson v. Wells Fargo Home Mortgage, Inc., 2008 WL 2142219 (D. Nev. May 16,
2008). In this Fair Credit Reporting Act case, the plaintiff claimed he sent documents and
communications drafted on his computers to his mortgage banker. The defendants
claimed that the plaintiff manufactured the evidence and then reformatted the laptops to
avoid discovery. The court ordered forensic analysis of the laptops, which revealed that
they had been reformatted after the discovery request but before the order. In considering
the appropriate sanction for spoliation, the court declined the dismissal requested by the
defendant and instead issued a less drastic adverse inference jury instruction, stating that
the plaintiff’s credibility was a question for the jury and the defendant had plenty of
evidence to support its case against the plaintiff.
Jones v. Hawley, 255 F.R.D. 51 (D.D.C. 2009). In this class action case brought under
the Aviation and Transportation Security Act and Privacy Act of 1974, defendants argued
(and plaintiffs did not deny) that the plaintiffs failed to hold, search, or produce any
responsive documents. The plaintiffs instead argued that there was no harm to the
defendants as a result of their conduct. The court reasoned plaintiffs’ conduct was
negligent and went “to the very heart of their claims for damages, and there [was] no
substitute for [those documents].” The court held that an adverse inference was
appropriate.
Juniper Networks Inc. v. Toshiba America Information Systems Inc., 2007 WL
2021776 (E.D. Tex. July 11, 2007). In a patent infringement case, the defendant failed to
produce requested BIOS source code. In response to a motion to compel, the defendant
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