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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
determine the amount of time the plaintiff spent working on his computer, explicitly
barring a substantive review of the documents themselves.
Kvitka v. Puffin Co., LLC, 209 WL 385582 (M.D. Pa. Feb 13, 2009). In this action,
the plaintiff, purchasers and sellers of antique dolls, brought suit against the defendants,
who allegedly “launched a campaign of character assassination” that led to the plaintiffs
being barred from advertising in a trade publication. The defendants moved for spoliation
sanctions after the plaintiffs failed to produce relevant email. The court found that the
plaintiff “acted with the highest degree of fault” in discarding an old laptop that contained
relevant email, failed to comply with preservation directions from her attorney, and had
ignored the advice of her computer technician that the email might be retrievable. The
court also found that the loss of this evidence severely prejudiced the defendants. Given
these findings, and noting that only a handful of emails had been produced, the court
dismissed the plaintiff’s claim and allowed an adverse inference on the defendant’s
counterclaims.
Laface Records, LLC v. Does 1-5, 2007 U.S. Dist. LEXIS 72225 (W.D. Mich. Sept.
27, 2007). Music copyright holders filed an action against five unknown defendants who
had downloaded or distributed plaintiffs’ music through an Internet service provided by
Northern Michigan University. Plaintiffs sought permission to serve a subpoena on the
University, seeking the identities and addresses of the persons using the computers on
which the file sharing had occurred, prior to the mandatory Rule 26(f) conference before
formal discovery is permitted. The court allowed the pre-conference discovery sought by
plaintiffs, but due to privacy concerns, allowed the third party Internet service provider
and the “Doe” defendants opportunity to modify or quash the subpoena.
Lawson v. Sun Microsystems, Inc., 2007 WL 2572170 (S.D. Ind. Sept. 4, 2007). Early
in a dispute over unpaid commissions, the plaintiff requested by letter that the defendant
produce all requested electronically stored information in electronic form. The formal
Rule 34 request, issued four months later, did not explicitly designate a form of
production, and the defendant produced paper. The plaintiff moved to compel the
production in electronic form, to which the defendant objected, citing Rule 34(b)’s “one
form” provision and the cost of changing formats after discovery has commenced. The
court, finding that the letter was sufficient notice of the desired form of production,
ordered the defendant to re-produce the material in electronic form.
Leibholz v. Hariri, 2008 WL 2697336 (D.N.J. June 30, 2008). In a contract dispute,
plaintiff sought discovery that allegedly proved defendant fabricated a letter that
defendant relied upon to release itself from a business relationship with the plaintiff.
Besides requesting photocopy files of the period when the relevant letter was drafted, the
plaintiff sought to depose the defendant’s employee responsible for maintaining
electronic copies of files. The defendant asserted the deposition would amount to “overdiscovery,”
violating Rule 26(b)(2). The defendant contended that the relevant hard
drives had been erased, offering certifications by one of its own employees stipulating
that it did not possess the documents in question. The court granted the plaintiff’s request,
noting that “the discovery sought is of large importance to the issues at stake in the action
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