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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
ReedHycalog UK, LTD v. United Diamond Drilling Services, Inc., 2008 U.S. Dist.
LEXIS 93177 (E.D. Texas Oct. 3, 2008). In a patent infringement action, the defendants
imaged the hard drives of relevant custodians, reviewed the data for privilege, designated
the rest as “confidential” or “attorney’s eyes only,” and turned over 750 gigabytes of data
to the plaintiffs, allegedly including baby pictures, audio files, and pornography. The
defendants also responded to interrogatories by suggesting search terms and appending
references to up to 75,000 electronic documents. The court found that the defendants’
“production practices amount to a data dump with an instruction to ‘go fish.’ … That this
fishing is done electronically is of no consequence.” The court prohibited the defendants
from using or relying on any document not produced from an agreed-up set of narrower
search terms or produced in response to a specific request by the plaintiff.
Regan-Touhy v. Walgreen Co., 526 F.3d 641 (10 th Cir. 2008). In an action for
unlawful disclosure of medical information, the plaintiff attempted to show by
circumstantial evidence that a particular employee of the local pharmacy was responsible
for the unauthorized disclosure, and requested computerized “log files,” email
communications, and computer manuals related to the pharmacy’s prescription and
customer database management system. The pharmacy objected to the overbreadth of the
request, but produced printout of the plaintiff’s transactions, none of which indicated that
the named employee was involved. The district court denied the plaintiff’s motion to
compel further electronic discovery and found for the defendant on summary judgment,
stating that the plaintiff’s case rested largely on inadmissible hearsay and suspicion. On
appeal, the 10 th Circuit upheld the district court’s order, citing The Sedona Principles and
other authority for the proposition that trial judges should exercise discretion to prevent
discovery disputes from displacing trial on the merits as the primary focus of the parties’
attentions.
Reinhard v. Dow Chemical Co., 2007 U.S. Dist. LEXIS 59242 (S.D.N.Y. Aug. 13,
2007). On the same day that the plaintiff in this employment action filed suit against the
defendant corporation in the Southern District of New York, the defendant filed suit
against the plaintiff the Eastern District of Michigan, where the defendant has principle
corporate offices, for unauthorized access to business information. Discovery in the
cross-actions was likely to involve computer hard drives located at the Michigan offices,
prompting the court in the Southern District of New York to hold that the "relative ease
of access to sources of proof" favored transfer of the case to the Eastern District of
Michigan.
Reino De Espana v. American Bureau of Shipping, 2007 U.S. Dist. LEXIS 5693
(S.D.N.Y. Jan. 25, 2007) ("Reino De Espana III"). In this high-profile oil spill cost
recovery action, the plaintiff Kingdom of Spain first insisted that it had no relevant
recoverable emails. When it became apparent that the plaintiff did have relevant email, it
moved for time to have forensic computer experts determine whether otherwise
inaccessible email could be retrieved. The court denied the plaintiff’s motion. On a
motion for reconsideration, the court found no basis for reconsideration and reaffirmed
the order, citing the plaintiff’s prior position that further forensic expert investigation
would be fruitless.
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