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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
PML North America, LLC v. ACG Enterprises of NC, 2007 U.S. Dist. LEXIS 87602
(E.D. Mich. Nov. 29, 2007)(“PML IV”). In an insurance-related fraud action, the
defendant corporation was sanctioned $134,373 in attorney fees and costs destroying
computers and data subject to discovery. During the course of the litigation, the
defendant corporation became insolvent. In this decision, the court transferred liability
for the sanctions from the corporation to its president, linking him directly to the
litigation misconduct, and ordered him to pay the sanction personally.
Preferred Care Partners Holding Corp., et al. v. Humana Inc., 2009 WL 982460
(S.D. Fla. Apr. 9, 2009). In this breach of contract case in which the defendant produced
10,000 documents on the eve of trial, plaintiffs moved for default judgment, arguing that
they were prejudiced by the "document dump" and the "print and purge scheme" that
deprived them of the ability to utilize the documents to plan their case before trial. Citing
Fed. R. Civ. P. 16 and 37, the court rejected the plaintiffs’ motion and concluded that the
defendant’s "shortcomings were neither intentional nor done in bad faith, but rather
resulted from the grossly negligent oversights of counsel." The court held the appropriate
remedy is to permit the plaintiffs "to conduct additional limited discovery pertaining to
the new information raised by [the defendant] supplemental production of documents, as
well as [the defendant’s] backup storage of electronic documents" and allow the plaintiffs
to attain costs and fees to conduct such discovery.
Proctor & Gamble Co., v. S.C. Johnson & Son, Inc., 2009 U.S. Dist. LEXIS 13190
(E.D. Tex. Feb 19, 2009). The parties in this action had agreed to document production
in searchable TIFF format, but the defendant sought to shift what it claimed would be a
$200,000 cost of OCR conversion to the plaintiff. The court, applying the Zubulake
factors, rejected the application.
PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670
(N.D.N.Y. Sept. 7, 2007). In this breach of contract case, the defendant sought
production of all electronically stored e-mails along with their corresponding
attachments. The plaintiff produced a disc with e-mails that, due to a technical glitch,
were not linked to their proper attachments. Efforts to locate the attachments failed and
the defendant moved to compel a second production at the plaintiff’s expense. The
plaintiff claimed that a second production would be overly burdensome and costly but
offered to comply at the defendant’s expense. The court found that the plaintiff’s original
production was neither in the form in which the information was ordinarily maintained
nor in a reasonably usable form as required by Rule 34(b)(ii) and ordered the plaintiff to
comply with the second discovery request at its own expense.
Pure Power Boot Camp v. Warrior Fitness Boot Camp, 2008 WL 4866165 (S.D.N.Y.
Oct. 23, 2008). In an action for breach of employment covenants, theft of trade secrets,
and trademark infringement, the defendant moved to preclude the use or disclosure of 34
emails it alleged the plaintiff obtained prior to the litigation unlawfully, in violation of the
Stored Communications Act, 18 U.S.C. § 2707. While employed by the plaintiff,
defendant had used the plaintiff’s computers to access his webmail accounts. The
Copyright © 2009, The Sedona Conference ® 68
www.thesedonaconference.org