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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
because the discovery sought could potentially resolve the issue of the…letter’s
authenticity.” The court also granted the plaintiff’s request to depose the defendant’s
employee “regarding the maintenance of electronic copies of files…” and “regarding the
backup procedures utilized, and the document and electronic record retention policies.”
L.H. v. Schwarzenegger, 2008 WL 2073958 (E.D. Cal. May 14, 2008). In a class
action brought against the State of California on behalf of wards and parolees in the state
juvenile justice system, the plaintiffs filed motions to compel production of documents
and for sanctions after a series of production delays by the defendant. In the words of the
court, “[f]rom the first discovery motion in this case to the present time, [the court] has
striven to be receptive to the difficulties governmental defendants face in class action
litigation. The discovery requested can be voluminous, and government staffing is not set
up such that state agencies have a plethora of resources to deal with the multitude of
discovery obligations. Oftentimes, discovery is easily requested and not so easily the
subject of response. Nevertheless, defendants did not seek to resolve problems via
discovery conferences or other available avenues, but simply, unilaterally denied/delayed
discovery until plaintiffs were compelled to file motions. Or, defendants and their
attorneys understaffed the discovery effort to the point where non-compliance was
guaranteed. Defendants then sought the solicitude of the court for the difficulties they
face, and in most instances have exacerbated. The court has little solicitude left.” Finding
the defendants’ behavior constituted “purposeful foot dragging”, the court ordered
production of the requested information “in reasonably useable form” under Rule 34(b),
together with fees and costs.
Lockheed Martin Corp. v. L-3 Communications Corp., 2007 U.S. Dist. LEXIS
79572, 2007 WL 3171299 (M.D. Fla. Oct. 25, 2007). In an action for violation of the
Computer Fraud and Abuse Act, 18 U.S.C.S. § 1030, an employee of the plaintiff
testified at a deposition that he did not recall receiving a litigation hold memorandum and
that he had deleted email to “clean up” his computer. The defendant then sought
sanctions against the plaintiff for spoliation. The court held that the defendant was not
entitled to sanctions as there was no evidence that the deleted email was relevant to
defendant’s claims or defenses. In addition, plaintiff would conduct a forensic search of
the hard drive of the employee’s computer and would produce any responsive email
found.
Lorraine v. Markel Am. Inc. Co., 241 F.R.D. 534 (D. Md. 2007). In this insurance
contract dispute, both the plaintiff and defendant filed motions for summary judgment
supported by unauthenticated, and therefore inadmissible, emails. The court dismissed
the cross motions for summary judgment without prejudice, because “neither party to this
dispute complied with the requirements of Rule 56 that they support their motion with
admissible evidence.” The court then provided a detailed and extensive analysis of the
requirements for authentication and admission of electronically stored information under
the Federal Rules of Evidence.
Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 U.S. Dist.
LEXIS 2379 (D. Nev. Jan. 9, 2007). In a sexual harassment suit, the defendant issued a
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