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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
documents remained in the producing party’s electronic archives. Additionally, the court
believed that the motion, coming very late in the discovery process, might unduly
interfere in the producing party’s ability to prepare for trial. However, the court granted
the motion, allowing the requesting party to hire an outside vendor to confirm the
completeness of the electronic document production. The review was to be paid for by
the requesting party and subject to conditions, including a limited number of search
terms, a limited number of backup tapes to be searched, and a confidentiality agreement.
Kipperman ex rel. Magnatrax Litigation Trust v. Onex Corporation, et al., 2008
WL 4372005 (N.D. Ga. Sept. 19, 2008). The plaintiffs requested production of email
from the defendants’ backup tapes based on a search for key words. The defendants
initially performed the search but limited the scope to the email boxes of seven named
deponents. The plaintiffs requested, and the court granted, that the search be re-run on all
email boxes, but the court suggested that the parties negotiate a narrower set of search
terms and custodians. The defendant failed to participate in the negotiations and executed
the broader search, which resulted in the large collection of “hits.” The defendant then
requested relief from reviewing and producing these documents. The court denied the
general relief sought, stating that the defendant did not take advantage of the opportunity
to reduce the scope of discovery earlier, and “must now lie in the bed that they have
made.” However, it granted relief in two clearly identifiable categories of documents
involving a transaction and a subsidiary not relevant to the litigation.
Kipperman v. Onex Corp., et al., 2009 WL 1473708 (N.D. Ga. May 27, 2009). In a
constructive transfer and fraud case with protracted discovery, the requesting party
contended that the producing parties had intentionally withheld discovery to prevent it
from arguing the case on the merits. The requesting party moved the court to establish a
specific schedule for further discovery, or that the court strike the other parties’ answer
and enter default judgment. In addition, it asked for an award of attorneys’ fees related to
its discovery motions, pursuant to Rule 37(b)(2). In response, the court asked the
requesting party to provide it with “a list in chart form of each instance of alleged
misconduct on the part of [the producing party] which the court has not yet punished and
the financial harm in the form of attorney time and costs to [the requesting party] as a
result of this misconduct.” Moving on to the producing parties, the court noted that
“rather than seeking a protective order [they] determined themselves that it would be
overly burdensome” to produce the discovery in the court-ordered format. The court
found that the producing parties’ behavior was sanctionable under Rules 26 and 37, citing
their failure to follow court orders pertaining to transfer-related interrogatories, their lack
of diligence in discovery, and “for making blatant misrepresentations about the value of
e-mail discovery in this case in an effort to influence the court’s ruling.” Although the
court refused to enter a default judgment, it awarded attorneys’ fees and other costs to the
requesting party.
Klayman v. Freedom's Watch, Inc., 2008 WL 4194881 (S.D. Fla. Sept. 12, 2008). At
the close of a trademark infringement suit, the prevailing defendant requested
reimbursement for $167,535.59 in third-party vendor expenses to collect, preserve,
inventory, code, and image electronically stored information pursuant to 28 U.S.C. §
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