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

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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 Copyright © 2009, The Sedona Conference ® 52 www.thesedonaconference.org
Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 subpoena to an online service provider (OSP) seeking production of the plaintiff’s email, which the OSP refused to obey without a court order or permission of the account owner. The defendant moved for an order from the court compelling the plaintiff to provide a letter of consent. The court refused to issue the order, citing the highly attenuated connection alleged between the email sought and the facts of the case, and suggesting the proper procedure would be to serve the plaintiff directly with a properly framed discovery request. MacLean-Fogg Co. v. Nongbo Fastlink Equip. Co., Ltd., 2008 WL 5100414 (N.D.Ill. Dec. 1, 2008). In this civil action, the plaintiff sought leave to serve process on the defendants, all of whom reside in China, by email and facsimile. The court granted the request, concluding that substituted service by electronic means may be authorized under Fed, R. Civ. P. 4(f)(3), and that the proposed methods of service comported with due process. Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006). In a trademark infringement action, the plaintiff moved for sanctions, citing several deficiencies in the defendant’s responses to requests for email and other electronic records. The court denied all but one of the plaintiff’s requests, citing a lack of factual details in the allegations and evidence of any prejudice to the plaintiff. Mancia, et al. v. Mayflower Textile Servs. Co., et al., 253 F.R.D. 354 (2008). In a wage and hour action brought by six laundry workers, the plaintiffs served extensive discovery requests on the defendants, prompting objections and a series of disputes over the adequacy of the defendants’ responses, particularly the defendants’ certification under Rule 26(g) that their boilerplate responses had been based on a “reasonable inquiry.” The case was referred to the Chief Magistrate Judge for resolution of the discovery issues. In a lengthy and scholarly opinion, the judge cited The Sedona Conference® Cooperation Proclamation and other authorities for the proposition that cooperation with opposing counsel in discovery is a professional obligation, and that both sides must refrain from turning discovery into a tactical battleground. He ordered the parties to meet and confer to discuss the realistic damages alleged, estimate their attorneys fees in prosecuting and defending this action, and “quantify a workable ‘discovery budget’ that is proportional to what is at issue in the case. He also suggested that proposed discovery be targeted to the most accessible, non-duplicative sources; that phased discovery be considered; and that any objections to discovery be particularized. Finally, the judge provided counsel with a format to report on their progress and raise any unresolved issues with the court. Margel v. EGL Gem Lab Ltd., 2008 WL 2224288 (S.D.N.Y. May 29, 2008). In a trademark dispute between two gemstone grading businesses, the plaintiff admitted that computers in its Belgian facility containing business records were routinely replaced every three years without any effort to preserve the data. The defendant applied for a finding that this constituted a failure to respond to discovery, but the court denied the application, as there was no evidence that any data on computers in the Belgian facility would be relevant to the action in the United States. The plaintiff applied for an order compelling the defendant to supplement its production of reports derived from a database Copyright © 2009, The Sedona Conference ® 53 www.thesedonaconference.org
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Federal Court Decisions Involving Electronic Discovery, December 1 ...

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