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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
failure to produce the emails earlier, including dismissal of the plaintiff’s claims. The
plaintiff argued that it was not under any obligation to produce emails that were no longer
in its system, but offered no explanation as to why the emails were not in its system. The
court held that based on the evidence, the emails were response to the defendant’s earlier
requests and that the defendant had been prejudiced by not receiving them. It appeared
that the failure to produced was not due to any systematic deletion of the emails, as at
least one fragment still existed, and the emails themselves were dated after anticipation of
litigation, so were within the scope of the plaintiff’s duty of preservation. The court
ordered that the emails could be included in a motion for summary judgment, and should
there be a trial, the defendant would be entitled to an adverse inference jury instruction.
Michigan First Credit Union v. Cumis Insurance Society, Inc., 2007 U.S. Dist.
LEXIS 84842, 2007 WL 4098213 (E.D. Mich. Nov. 16, 2007). The plaintiff sought
sanctions for defendant’s failure to include metadata in its production of ESI in
compliance with a previous court order. However, the previous court order did not
specify native production or the production of metadata, Rule 34 does not specifically
require native production or the production of metadata in all cases, and the court found
that in this case "the production of this metadata would be overly burdensome with no
corresponding evidentiary value."
Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D.Del. Jan 9, 2009). In the
continuing saga of nationwide patent infringement actions involving microchip
manufacturer Rambus as both plaintiff and defendant, the court held a bench trial on
competitor Mircon’s allegations that Rambus spoliated evidence and was guilty of
“unclean hands” in its enforcement of patent claims. The court found that Rambus
spoliated evidence by conducting employee “shred days” after a duty to preserve had
attached and that Rambus had made misrepresentations with regard to its destruction of
evidence. Addressing the appropriate sanction, the court noted that “[t]he required burden
of proof to establish spoliation is not a matter of settled law in the Third Circuit,” and
held that a clear and convincing evidence standard “in the patent area in proving
inequitable conduct.” The court continued, “[m]ore specifically, once intent and prejudice
have been established, the court must determine whether their total weight satisfies the
clear and convincing standard of proof. In this regard, the showing of intent (i.e., bad
faith) can be proportionally less when balanced against high prejudice.” The court
concluded that “[t]he spoliation conduct was extensive” and that, in the nonjury context,
an appropriate sanction was to declare the patents in issue unenforceable as against
Micron.
Mid-State Aftermarket v. MQVP, Case 2009 U.S. Dist. LEXIS 41914 (E.D. Ark.
Apr. 27 2009). In a trademark infringement case, the requesting party alleged spoliation
of 135,000 electronic invoices for a period of two and one-half years immediately prior to
the commencement of litigation. The requesting party also alleged the destruction of
relevant data due to an improper backup process when the producing party was
previously purchased by another company. While the court noted that the disappearance
of the electronic invoices was “obviously suspicious,” it could not “confidently rule on
the issue” of whether the data was intentionally destroyed until a previously unexamined
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