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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
Mintel Int’l Group Ltd. v. Neergheen, 2009 U.S. Dist. LEXIS 32738 (N.D. Ill., Apr.
17, 2009). In this employment case brought under the Trade Secrets Act, the court ruled
on several discovery motions before trial. The defendant argued that the plaintiff’s expert
should not be allowed to testify, because the expert disclosure was not made until weeks
after the agreed-upon date. The court held that neither prejudice nor a “trial by ambush”
occurred because discovery extended through the next month and the additional
disclosure was harmless. The court also noted that it would not rule on the defendant’s
second motion for spoliation sanctions for the plaintiff’s failure to preserve documents;
instead, it would reserve the right to reconsider such a motion after all the evidence is
presented. The plaintiff had also moved for spoliation and appealed the magistrate
judge’s denial of sanctions, but the court upheld the magistrate judge’s ruling considering
expert opinions relating to the defendant’s wiping of the computer hard drive, finding that
several relevant documents still remained on the drive and that there were no residual
traces of wiping software on the computer.
MGP Ingredients, Inc. v. Mars, Inc., 2007 WL 3010343 (D. Kan. Oct. 15, 2007). In
this suit alleging patent infringement and misappropriation of trade secrets, the plaintiff
moved the court to compel the defendant to identify particular documents responsive to
each request for production, rather than merely producing documents in the format in
which they are kept in the usual course of business. The court denied the motion, relying
on Rule 34(b), which requires a responsive party to produce documents either in the
manner in which they are kept in the usual course of business or to organize and label the
documents to correspond to each request, absent an agreement by the parties to an
alternative form of production.
Mon River Towing, Inc. v. Industry Terminal and Salvage Co., 2008 WL 2412946
(W.D. Pa. June 10, 2008). In a shipping contract dispute, the defendant requested that
the plaintiff produce, inter alia, computer printouts “analyzing barges available for the
Ingram contracts [and] analyses of charters extended in 2004.” The plaintiff objected that
Rule 34 does not require it to create or generate responsive materials, but only to produce
items in its “possession, custody or control.” The court distinguished requests that called
for electronically stored information in databases to be produced as computer printouts,
from requests requiring the responding party to perform any “analyses.” The court
ordered the responding party to produce any existing data or analyses, and to execute an
affidavit indicating the extent to which any request could not be met with documents or
electronically stored data in its “possession, custody or control.”
Muro v. Target Corporation, 243 F.R.D 301 (N.D. Ill. June 7, 2007) (“Muro I”). In
the class certification stage of this putative class action alleging violation of the Truth in
Lending Act, the defendant listed several email message chains on its privilege log. The
court ordered that the threads be produced, as the defendant had failed to comply with
requirements of Rule 26(b)(5) to identify with particularity the messages it claimed were
privileged and the basis for the privilege. The court held that where a chain of email
contains privileged and non-privileged communications, only the privileged
communications that are adequately identified may be withheld. The court expressed
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