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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
filed charts with the court, listing the BIOS source code as “not available.” This was
contradicted by testimony of the defendant’s own witnesses, prompting the court to find
that the defendant “made the conscious and willful decision” to withhold the requested
information from production. Among the sanctions ordered by the court were limitations
on the defendant’s time for opening and closing statements, removal of two of the four
permitted preemptory jury challenges, exclusion of expert testimony on noninfringement,
a jury instruction on the withholding of discovery, and payment of
attorneys fees to the plaintiff.
Kay Beer Distributing, Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis.
June 10, 2009). In a lawsuit arising from the breach of an oral distribution agreement, the
requesting party sought five DVDs containing the producing party’s emails and other
ESI, claiming it was entitled to the information in searchable and usable format along
with metadata. The producing party opposed the motion on the grounds that the DVDs
contained privileged information, they would be too costly to produce, and that there
were few outstanding issues given an earlier summary judgment motion. The court held
that the request was overly broad given the limited number of issues remaining in the
case. The court noted that the request for every email or ESI that included some variation
of the requesting party’s name was not reasonably calculated to lead to discovery of
relevant evidence. Citing Principle 12 of The Sedona Principles: Best Practices,
Recommendations & Principles for Addressing Electronic Document Production (2005),
which states “unless it is material to resolving the dispute, there is no obligation to
preserve and produce metadata absent agreement of the parties or order of the court,” the
court denied the request for production in native format.
KCH Serv., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009). In this
civil action for software piracy, the court found that a telephone call from the plaintiff’s
company president was sufficient to trigger a litigation hold. The call was made to an
individual defendant, accused the corporate defendant of using the plaintiff’s software
and advised employees of the corporate defendant to delete any software that the
corporate defendant did not purchase or install. The defendants complied with the
plaintiff’s instructions to remove the software from their active servers, but failed to
create a backup for evidence preservation purposes. The court held that the defendants
were on notice that the plaintiff was willing and able to sue, should have known that
software would be relevant to reasonably anticipated litigation, and therefore had a duty
to preserve the evidence.
Kellogg v. Nike, Inc., 2007 U.S. Dist. LEXIS 95629, 2007 WL 4570871 (D. Neb. Dec.
26, 2007). In a patent infringement suit, the plaintiff filed a motion to compel production
of information regarding the defendant’s document retention and preservation policies.
The plaintiff also sought documents from a privilege log predating this litigation. The
court held that the plaintiff had already obtained information about document retention
and preservation policies through a Rule 30(b)(6) deposition and could not demonstrate
any gaps in the defendant’s production. Regarding the privilege log, the court held that
the privilege status of the documents at their creation date controlled -- not the status on
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