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

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Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 search using the terms it had submitted. The court held that a third search was warranted; however, the plaintiffs were ordered to pay the defendants’ costs, up to the amount spent on the second search. Technical Sales Assocs., Inc. v. Ohio Star Forge Co., 2009 WL 728520 (E.D. Mich. Mar. 19, 2009). In a sales commission dispute, the plaintiff sought sanctions for the alleged destruction of evidence. The defendant sought a contempt motion, arguing the plaintiff breached the confidentiality provisions of a protective order when conducting a computer forensic examination. During its forensic examination, the plaintiff allegedly found evidence that the defendant had deleted approximately 70,000 files. The court noted that the timing of the data destruction was suspicious, coming right before the forensic examination was to take place. The court granted the plaintiff’s motion and ordered monetary sanctions in the amount of the forensic examination. However, the court reserved its final decision regarding additional sanctions until trial. In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008). In a complex adversary proceeding in bankruptcy court, the defendant debtors sought sanctions for the alleged spoliation of information “considered” by the creditor plaintiffs’ expert witnesses in forming their opinions. Reviewing the developing case law and noting a split in authority, the court found that Rule 26(a)(2)(B) does not impose an obligation on a party to preserve or produce an expert’s personal notes or draft reports. Factual communications from counsel to the experts may be required to be produced, but comments to the experts’ draft by counsel or non-testifying experts retained by counsel were protected as work product. Telequest Intern. Corp. v. Dedicated Business Systems, Inc., 2009 U.S. Dist. LEXIS 19546 (D.N.J. Mar. 11, 2009). In a breach of fiduciary duty case, plaintiff sought sanctions against defendant for spoliation of "materially relevant paper and electronic files during the course of [the] litigation." Plaintiff alleged that defendant, a former employee, stole a list of customers and vendors from the plaintiff's company. To substantiate its claim, plaintiff obtained a copy of the defendant's email that was addressed to one of plaintiff's employees. The email included the plaintiff's customer and vendor list obtained by the defendant during his employment. The court directed defendant to produce "any and all computers used by (defendant and his business) in connection with the sale, purchase or marketing of telecommunications equipment since January 2006." The court found that on the date the computer was delivered to plaintiff, a “Secure Clean” program had "wiped" data from the hard drive, making it unrecoverable using conventional computer forensic tools. The court also noted that the "Secure Clean" program was deleted from the computer on that same day. The court concluded that defendant's duty to preserve arose well before the order to produce the computers was entered. While acknowledging a split between itself and the Third Circuit regarding whether spoliation must be intentional or negligent for sanctions to be applied, the court recognized that it need not make a determination on which standard to apply because an adverse inference was warranted under either standard. Copyright © 2009, The Sedona Conference ® 84 www.thesedonaconference.org
Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008). The State of Texas filed a declaratory judgment action to determine its preservation obligations after receiving a “litigation hold” letter from the City of Frisco. The letter demanded that the State preserve all data associated with planning a highway and stated “a potential exists for litigation in connection with the conversion of SH 121 into a tollway.” The court held that the mere threat of litigation was “insufficiently immediate to establish an actual controversy” between the City and the State, and that it therefore had no jurisdiction over the State’s complaint. Textron Financial Corp. v. Eddy’s Trailer Sales, Inc., 2009 U.S. Dist. LEXIS 60065 (E.D.N.Y. July 10, 2009). In this Minute Order, the court directed, among other things, that ESI that it had previously ordered to be produced was accessible and that the defendants had not demonstrated any reason to shift costs. However, the court “capped” the defendants’ costs at $10,000 and directed that any costs in excess of that amount be borne by the plaintiff. The court also ordered the parties to confer with regard to the manner of production. Thielen v. Buongiorno USA, Inc., 2007 WL 465680 (W.D. Mich. Feb. 8, 2007). In a civil action under the Telephone Communication Privacy Act alleging unsolicited text messaging to cell phones, the defendant sought direct access to the plaintiff’s computer to determine whether the plaintiff had consented to the defendant’s text messaging service. The plaintiff objected, claiming undue burden. The court applied Fed. R. Civ. P. 26(b)(2)(B) and found that the plaintiff had not demonstrated that the requested discovery was from sources “not reasonably accessible,” and therefore discovery should be allowed. However, applying Rule 26(b)(2)(C), the court found good cause for entry of a protective order to prevent “wholesale rummaging” through the plaintiff’s computer. The inspection would be conducted by an independent forensic examiner, who would provide a report first to counsel for the plaintiff who would be allowed time to file for any additional protective order before the report would be turned over to counsel for the defendant, who would bear the cost of this discovery. Thomas v. IEM, 2008 WL 695230 (M.D. La. Mar. 12, 2008). In this civil rights action alleging violation the Family and Medical Leave Act, the plaintiff served a Rule 45 subpoena on the defendant, her former employer, seeking production of a complete electronic copy of the e-mail boxes of nine named individuals as they appeared on a specified date. The defendant objected to the use of the Rule 45 subpoena process on a party as an attempt to circumvent the discovery deadlines, and argued that the information sought was irrelevant, confidential, duplicative, and unduly burdensome. The court denied the plaintiff’s motion to compel production under the subpoena, as the information sought constituted discovery within the meaning of Rules 26 and 34 and the request was not limited in time or subject matter. 3M Company v. Kanbar, 2007 WL 1725448, (N.D. Cal. June 14, 2007). In a trademark infringement suit, the defendant moved to compel 3M to “organize” or “itemize” the documents produced in response to its requests. The court found that while broad descriptions of categories of documents may be sufficient to meet the disclosure Copyright © 2009, The Sedona Conference ® 85 www.thesedonaconference.org
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Federal Court Decisions Involving Electronic Discovery, December 1 ...

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