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Kiser v. Pride Communications, Inc., 2011 U.S. Dist. LEXIS 124124 (D. Nev. Oct. 26, 2011).
Since defendants obtained processing and maintenance of electronic payroll records from a third party vendor, it was inconceivable that defendants could not obtain the records. They thus were in control of the records and had to produce them to plaintiffs under Fed. R. Civ. P. 34.
Since defendants obtained processing and maintenance of electronic payroll records from a third party vendor, it was inconceivable that defendants could not obtain the records. They thus were in control of the records and had to produce them to plaintiffs under Fed. R. Civ. P. 34.
United States ex rel. McBride, 2011 U.S. Dist. LEXIS 6412 (D.D.C. Jan. 24, 2011).
Discovery of email used to transmit already-produced documents was denied. The court was obligated under Fed. R. Civ. P. 26(b)(2)(C) to balance cost against utility even for discovery that was likely to lead to relevant evidence, and it considered the email "hopelessly insignificant."
Discovery of email used to transmit already-produced documents was denied. The court was obligated under Fed. R. Civ. P. 26(b)(2)(C) to balance cost against utility even for discovery that was likely to lead to relevant evidence, and it considered the email "hopelessly insignificant."
Degeer v. Gillis, "Degeer II", 2010 U.S. Dist. LEXIS 129745 (N.D. Ill. Dec. 8, 2010).
In a case that the court described as demonstrating "the importance of candid, meaningful discussion of ESI at the outset of the case, including discovery of ESI from non-parties" and the need for collaboration with nonparties on search terms and custodians, defendants were ordered to share the cost of additional searches by a nonparty in response to a Fed. R. Civ. P. 45 subpoena from defendants.
In a case that the court described as demonstrating "the importance of candid, meaningful discussion of ESI at the outset of the case, including discovery of ESI from non-parties" and the need for collaboration with nonparties on search terms and custodians, defendants were ordered to share the cost of additional searches by a nonparty in response to a Fed. R. Civ. P. 45 subpoena from defendants.
Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. Nov. 18, 2010).
A plaintiff who did not raise the issue of electronic discovery in the Fed. R. Civ. P. 26(f)(3) discovery conference or discovery plan and did not seek production of email in native or electronic format was not entitled to production of email in native file format. However, defendant also had a responsibility to raise the form of production issue at the discovery conference and thus was obligated to produce the metadata for a key document.
A plaintiff who did not raise the issue of electronic discovery in the Fed. R. Civ. P. 26(f)(3) discovery conference or discovery plan and did not seek production of email in native or electronic format was not entitled to production of email in native file format. However, defendant also had a responsibility to raise the form of production issue at the discovery conference and thus was obligated to produce the metadata for a key document.
Tamburo v. Dworkin, 2010 U.S. Dist. LEXIS 121510 (N.D. Ill. Nov. 17, 2010).
Pending resolution of a motion to dismiss, use of the proportionality tool of phased discovery was ordered under the Fed. R. Civ. P. 26 proportionality test that allowed "the Court to 'limit discovery if it determines that the burden of the discovery outweighs its benefit.'"
Pending resolution of a motion to dismiss, use of the proportionality tool of phased discovery was ordered under the Fed. R. Civ. P. 26 proportionality test that allowed "the Court to 'limit discovery if it determines that the burden of the discovery outweighs its benefit.'"
Willnerd v. Sybase, Inc., 2010 U.S. Dist. LEXIS 121658 (D. Idaho Nov. 16, 2010).
Using the proportionality standard of Fed. R. Civ. P. 26(b)(2)(C) as suggested by plaintiff, the court ordered defendant to search its servers for email to or from an employee of defendant that contained plaintiff's first or last name.
Using the proportionality standard of Fed. R. Civ. P. 26(b)(2)(C) as suggested by plaintiff, the court ordered defendant to search its servers for email to or from an employee of defendant that contained plaintiff's first or last name.
Trilegiant Corp. v. Sitel Corp., 2010 U.S. Dist. LEXIS 121490 (S.D.N.Y. Nov. 15, 2010).
Discovery in an action seeking liquidated damages was limited to information that tended to address whether the liquidated damages were reasonably proportional to the anticipated actual loss from the breach of contract and negligence alleged by plaintiff. Relevance of the information sought had to be balanced under Fed. R. Civ. P. 26(b)(2)(C) against "the burden or expense of the proposed discovery" in order to avoid unreasonably cumulative or duplicative discovery.
Discovery in an action seeking liquidated damages was limited to information that tended to address whether the liquidated damages were reasonably proportional to the anticipated actual loss from the breach of contract and negligence alleged by plaintiff. Relevance of the information sought had to be balanced under Fed. R. Civ. P. 26(b)(2)(C) against "the burden or expense of the proposed discovery" in order to avoid unreasonably cumulative or duplicative discovery.
Ace United States v. Union Pacific R.R. Co., 2010 U.S. Dist. LEXIS 119042 (D. Kan. 2010).
Counsel in a federal case in Kansas who failed to confer sufficiently with opposing counsel before a discovery motion was filed were instructed to read the Mancia decision from the U.S. District Court in Maryland "to assist them in complying" with Fed. R. Civ. P. 26(g).
Counsel in a federal case in Kansas who failed to confer sufficiently with opposing counsel before a discovery motion was filed were instructed to read the Mancia decision from the U.S. District Court in Maryland "to assist them in complying" with Fed. R. Civ. P. 26(g).
Richardson v. Sexual Assault/Spouse Abuse Research Center, Inc., 2010 U.S. Dist. LEXIS 117342 (D. Md. Oct. 28, 2010).
Plaintiff's Fed. R. Civ. P. 45 subpoena served on defendants was quashed because "regardless whether a subpoena may be served on a party, a subpoena is not a proper means for obtaining documents previously sought through a Rule 34 production request, after the adverse party objected to the request."
Plaintiff's Fed. R. Civ. P. 45 subpoena served on defendants was quashed because "regardless whether a subpoena may be served on a party, a subpoena is not a proper means for obtaining documents previously sought through a Rule 34 production request, after the adverse party objected to the request."
Smith v. James C. Hormel School of the Virginia Institute of Autism, 2010 U.S. Dist. LEXIS 95668 (W.D. Va. Sept. 14, 2010).
Although plaintiffs violated Fed. R. Civ. P. 26(b)(5) by not identifying privileged email on a log until after responding in their initial response and in a deposition that there was no email being withheld for privilege, they did not waive privilege because they were not trying to conceal the email. However, plaintiffs were ordered to pay defendant's cost in seeking an order to compel production of the email.
Although plaintiffs violated Fed. R. Civ. P. 26(b)(5) by not identifying privileged email on a log until after responding in their initial response and in a deposition that there was no email being withheld for privilege, they did not waive privilege because they were not trying to conceal the email. However, plaintiffs were ordered to pay defendant's cost in seeking an order to compel production of the email.
Eli Lilly & Co. v. Wockhardt Ltd., 2010 U.S. Dist. LEXIS 61811 (S.D. Ind. June 22, 2010).
After producing documents as they were kept in the usual course of business, plaintiff was not required under Fed. R. Civ. P. 34 to also organize and label documents to correspond to the categories in defendant's request for production. However, given plaintiff's "demonstrated ample resources," the court ordered plaintiff to "in good faith generally match up its documents with [defendant's] requests by letter, chart, or some form of index."
After producing documents as they were kept in the usual course of business, plaintiff was not required under Fed. R. Civ. P. 34 to also organize and label documents to correspond to the categories in defendant's request for production. However, given plaintiff's "demonstrated ample resources," the court ordered plaintiff to "in good faith generally match up its documents with [defendant's] requests by letter, chart, or some form of index."
Phillip M. Adams & Associates, LLC v. Fujitsu Ltd., 2010 U.S. Dist. LEXIS 25417 (D. Utah Mar. 17, 2010).
Defendant was permitted to subpoena information from nonparties on their communications with defendant but was required to pay the nonparties' cost of complying with the subpoenas issued under Fed. R. Civ. P. 45 in order to protect the nonparties from undue burden or cost.
Defendant was permitted to subpoena information from nonparties on their communications with defendant but was required to pay the nonparties' cost of complying with the subpoenas issued under Fed. R. Civ. P. 45 in order to protect the nonparties from undue burden or cost.
Rodriguez-Torres v. Government Development Bank of Puerto Rico, 2010 U.S. Dist. LEXIS 3958 (D.P.R. 2010).
Articles suggesting that email was more conducive to derogatory remarks did not provide good cause under Fed. R. Civ. P. 26(b)(2)(B) for requiring defendant in an employment discrimination case to produce electronic documents that the court considered not reasonably accessible due to a $35,000 search cost.
Articles suggesting that email was more conducive to derogatory remarks did not provide good cause under Fed. R. Civ. P. 26(b)(2)(B) for requiring defendant in an employment discrimination case to produce electronic documents that the court considered not reasonably accessible due to a $35,000 search cost.
Ascom Hasler Mailing Systems, Inc. v. United States Postal Service, 2010 U.S. Dist. LEXIS 2875 (D.D.C. Jan. 14, 2010).
In order to hold off a possible spoliation motion, the court directed the parties to prepare a joint report on documents that plaintiff had or should have and that defendant still needed.
In order to hold off a possible spoliation motion, the court directed the parties to prepare a joint report on documents that plaintiff had or should have and that defendant still needed.
Convertino v. United States Department of Justice, 2009 U.S. Dist. LEXIS 115050 (D.D.C. Dec. 10, 2009).
Email of a Justice Department attorney with his private attorney using a Department of Justice email address remained protected by attorney-client privilege pursuant to Fed. R. Evid. 502(b) even though the Department saved the email but did not claim privilege over it. The Department attorney reasonably believed his email would remain confidential, according to the court, and he took steps to limit disclosure of the email.
Email of a Justice Department attorney with his private attorney using a Department of Justice email address remained protected by attorney-client privilege pursuant to Fed. R. Evid. 502(b) even though the Department saved the email but did not claim privilege over it. The Department attorney reasonably believed his email would remain confidential, according to the court, and he took steps to limit disclosure of the email.
Cenveo Corp. v. Southern Graphic Systems, 2009 U.S. Dist. LEXIS 108623 (D. Minn. Nov. 18, 2009).
A request for production of documents in their "native format" was unambiguous, and "native format" did not have to be defined in order to specify the form of production within the meaning of Fed. R. Civ. P. 34(b)(2)(E)(ii).
A request for production of documents in their "native format" was unambiguous, and "native format" did not have to be defined in order to specify the form of production within the meaning of Fed. R. Civ. P. 34(b)(2)(E)(ii).
Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization, 2009 U.S. Dist. LEXIS 105457 (W.D. Wash. Nov. 12, 2009).
Defendant's intentional disclosure of a privileged email did not result in a blanket waiver of privilege under Fed. R. Evid. 502(a) for all documents on defendant's privilege log because plaintiff did not show that the documents listed on the log related to the same subject matter as the disclosed email.
Defendant's intentional disclosure of a privileged email did not result in a blanket waiver of privilege under Fed. R. Evid. 502(a) for all documents on defendant's privilege log because plaintiff did not show that the documents listed on the log related to the same subject matter as the disclosed email.
Applied Materials, Inc. v. Advanced Micro-Fabrication Equipment (Shanghai) Co., 2009 U.S. Dist. LEXIS 103759 (N.D. Cal. Oct. 22, 2009).
An email by plaintiff's chief executive officer was properly designated as confidential information within the meaning of a protective order and Fed. R. Civ. P. 26(c)(1)(G), given the court's broad latitude to grant protective orders and defendant's plan to use the email to encourage a government investigation and additional lawsuits against plaintiff.
An email by plaintiff's chief executive officer was properly designated as confidential information within the meaning of a protective order and Fed. R. Civ. P. 26(c)(1)(G), given the court's broad latitude to grant protective orders and defendant's plan to use the email to encourage a government investigation and additional lawsuits against plaintiff.
Whitlow v. Martin, 2009 U.S. Dist. LEXIS 96011 (C.D. Ill. Oct. 15, 2009).
Objections by a non-party state government official to a subpoena were sustained in part after the official estimated that the document search required by the subpoena would cost hundreds of thousands of dollars and take over two years. However, the official was required to search for and produce official personnel records related to 2117 alleged patronage employees for a one-year period and records related to any sponsors of the employees because the relevance of such documents provided good cause for production even if the records were not reasonably accessible within the meaning of Fed. R. Civ. P. 45(d)(1)(D).
Objections by a non-party state government official to a subpoena were sustained in part after the official estimated that the document search required by the subpoena would cost hundreds of thousands of dollars and take over two years. However, the official was required to search for and produce official personnel records related to 2117 alleged patronage employees for a one-year period and records related to any sponsors of the employees because the relevance of such documents provided good cause for production even if the records were not reasonably accessible within the meaning of Fed. R. Civ. P. 45(d)(1)(D).
Pulse Engineering, Inc. v. Mascon, Inc., 2009 U.S. Dist. LEXIS 92971 (S.D. Cal. Oct. 1, 2009).
Post-complaint email between an employee of defendant seller in a patent infringement action and employees of the non-party manufacturer of the infringing product was protected under Fed. R. Civ. P. 26(b)(3) from disclosure to plaintiff by the work product doctrine. The email concerned tests of the product by the manufacturer conducted at the request of litigation counsel for the seller due to the pending litigation.
Post-complaint email between an employee of defendant seller in a patent infringement action and employees of the non-party manufacturer of the infringing product was protected under Fed. R. Civ. P. 26(b)(3) from disclosure to plaintiff by the work product doctrine. The email concerned tests of the product by the manufacturer conducted at the request of litigation counsel for the seller due to the pending litigation.
High Voltage Beverages, LLC v. Coca-Cola Co., 2009 U.S. Dist. LEXIS 88259 (W.D.N.C. Sept. 7, 2009).
Under the proportionality standard of Fed. R. Civ. P. 26(b)(2)(C), the court held that defendant did not have to review its collection of 17 gigabytes or 1.5 million pages of documents assembled through litigation holds in other actions. Defendant was willing to allow plaintiff to search through the collection, and counsel for defendant unequivocally stated that all relevant documents already had been provided to plaintiff in earlier productions.
Under the proportionality standard of Fed. R. Civ. P. 26(b)(2)(C), the court held that defendant did not have to review its collection of 17 gigabytes or 1.5 million pages of documents assembled through litigation holds in other actions. Defendant was willing to allow plaintiff to search through the collection, and counsel for defendant unequivocally stated that all relevant documents already had been provided to plaintiff in earlier productions.
In re National Century Financial Enterprises, Inc. Financial Investment Litigation, “National Century III”, 2009 U.S. Dist. LEXIS 92237 (S.D. Ohio Sept. 1, 2009).
An order requiring a party to pay for re-deposition of its employees at which they could be questioned about a key email that the party failed to produce was an appropriate sanction under Fed. R. Civ. P. 37(c).
An order requiring a party to pay for re-deposition of its employees at which they could be questioned about a key email that the party failed to produce was an appropriate sanction under Fed. R. Civ. P. 37(c).
Grider v. Keystone Health Plan Central, Inc., 2009 U.S. App. LEXIS 19642 (3d Cir. Sept. 1, 2009).
Sanctions requiring defendants and their counsel to pay over $3.2 million of plaintiffs' attorney fees were vacated because the trial court failed to specify, as required by Fed. R. Civ. P. 26(g)(3), how defendants' general discovery objections were "without substantial justification."
Sanctions requiring defendants and their counsel to pay over $3.2 million of plaintiffs' attorney fees were vacated because the trial court failed to specify, as required by Fed. R. Civ. P. 26(g)(3), how defendants' general discovery objections were "without substantial justification."
Lawson v. Plantation General Hospital, L.P., 2009 U.S. Dist. LEXIS 81753 (S.D. Fla. Aug. 25, 2009).
Defendant was not obligated to supplement its Fed. R. Civ. P. 26(a) initial disclosure with documents that the parties first learned about during a deposition. Rule 26 permitted descriptions of categories of documents in lieu of production of the documents, the documents were described at the deposition, and defendant stated that it did not intend to use the documents at trial in support of the defense.
Defendant was not obligated to supplement its Fed. R. Civ. P. 26(a) initial disclosure with documents that the parties first learned about during a deposition. Rule 26 permitted descriptions of categories of documents in lieu of production of the documents, the documents were described at the deposition, and defendant stated that it did not intend to use the documents at trial in support of the defense.
Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind. July 27, 2009).
Defendant was ordered to produce electronically stored information in native format rather than .pdf format. Plaintiffs sought production in "computer-readable form" and Advisory Committee notes to Fed. R. Civ. P. 34 were clear that the format of electronically stored information was not to be converted into a format that would make it more difficult or burdensome for the requesting party to use.
Defendant was ordered to produce electronically stored information in native format rather than .pdf format. Plaintiffs sought production in "computer-readable form" and Advisory Committee notes to Fed. R. Civ. P. 34 were clear that the format of electronically stored information was not to be converted into a format that would make it more difficult or burdensome for the requesting party to use.
United States v. Board of County Commissioners of the County of Dona Ana, New Mexico, 2009 U.S. Dist. LEXIS 65540 (D.N.M. July 27, 2009).
Failure to provide a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A)(ii) when asserting privilege did not waive privilege.
Failure to provide a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A)(ii) when asserting privilege did not waive privilege.
Armor Screen Corp. v. Storm Catcher, Inc., 2009 U.S. Dist. LEXIS 59927 (S.D. Fla. June 29, 2009).
An award to plaintiff of its attorney fees and costs in successfully opposing defendants' motion to compel production of documents was required by Fed. R. Civ. P. 37(a)(5)(B) because defendants failed to show any substantial justification for the motion to compel. However, plaintiff’s computerized legal research costs were not reimbursable.
An award to plaintiff of its attorney fees and costs in successfully opposing defendants' motion to compel production of documents was required by Fed. R. Civ. P. 37(a)(5)(B) because defendants failed to show any substantial justification for the motion to compel. However, plaintiff’s computerized legal research costs were not reimbursable.
Valeo Electrical Systems, Inc. v. Cleveland Die & Mfg. Co., 2009 U.S. Dist. LEXIS 51421 (E.D. Mich. June 17, 2009).
Plaintiff had no obligation to organize data it produced according to the 28 categories of a document request because the data had been produced in the form in which it was ordinarily kept as permitted by Fed. R. Civ. P. 34(b)(2)(E)(i).
Plaintiff had no obligation to organize data it produced according to the 28 categories of a document request because the data had been produced in the form in which it was ordinarily kept as permitted by Fed. R. Civ. P. 34(b)(2)(E)(i).
Digital Encoding Factory v. Iron Mountain Information Management, Inc., 2009 U.S. Dist. LEXIS 45612 (W.D. Pa. June 1, 2009).
Defendant failed to comply with requirements of Fed. R. Civ. P. 30(b)(6) when it presented a representative for deposition who testified that he had not spoken to anyone from defendant to get information on the topics listed in the deposition notice and did not independently investigate any of the topics. Defendant was ordered to pay plaintiff's fees and costs in obtaining an order requiring production of a witness who would provide testimony on specific topics.
Defendant failed to comply with requirements of Fed. R. Civ. P. 30(b)(6) when it presented a representative for deposition who testified that he had not spoken to anyone from defendant to get information on the topics listed in the deposition notice and did not independently investigate any of the topics. Defendant was ordered to pay plaintiff's fees and costs in obtaining an order requiring production of a witness who would provide testimony on specific topics.
Linde v. Arab Bank, PLC, 2009 U.S. Dist. LEXIS 43439 (E.D.N.Y. May 22, 2009).
A true conflict between U.S. discovery rules and Israeli bank confidentiality laws led a U.S. court to decline to compel a non-party bank to produce protected documents. The documents sought by defendant pursuant to Fed. R. Civ. P. 45 were located in Israel, were unlikely to be helpful to defendant in responding to plaintiff's claims, and were covered by Israeli laws providing civil liability and criminal penalties if disclosed by the bank.
A true conflict between U.S. discovery rules and Israeli bank confidentiality laws led a U.S. court to decline to compel a non-party bank to produce protected documents. The documents sought by defendant pursuant to Fed. R. Civ. P. 45 were located in Israel, were unlikely to be helpful to defendant in responding to plaintiff's claims, and were covered by Israeli laws providing civil liability and criminal penalties if disclosed by the bank.
Debose v. Broward Health, 2009 U.S. Dist. LEXIS 45546 (S.D. Fla. May 20, 2009).
Defendant was barred in its defense from using email that should have been produced to plaintiff in defendant's Initial Disclosures pursuant to Fed. R. Civ. P. 26(a). However, defendant was not barred from using the email for impeachment purposes because plaintiff had requested production of documents without specifying email as "documents" to be produced.
Defendant was barred in its defense from using email that should have been produced to plaintiff in defendant's Initial Disclosures pursuant to Fed. R. Civ. P. 26(a). However, defendant was not barred from using the email for impeachment purposes because plaintiff had requested production of documents without specifying email as "documents" to be produced.
South Yuba River Citizens League v. National Marine Fisheries Service, 2009 U.S. Dist. LEXIS 42967 (E.D. Cal. May 6, 2009).
Attorney work product communicated to an expert who supplied a declaration for plaintiff in support of a motion for preliminary injunction had to be disclosed to defendant pursuant to Fed. R. Civ. P. 26(a)(2) because “any material, including attorney opinion, considered by a testifying expert in formation of his testimony is not protected by the work product rule.”
Attorney work product communicated to an expert who supplied a declaration for plaintiff in support of a motion for preliminary injunction had to be disclosed to defendant pursuant to Fed. R. Civ. P. 26(a)(2) because “any material, including attorney opinion, considered by a testifying expert in formation of his testimony is not protected by the work product rule.”
Henderson v. United States Bank, N.A., 2009 U.S. Dist. LEXIS 40968 (E.D. Wis. Apr. 29, 2009).
Defendant’s motion to compel plaintiff’s production of all his computers, electronic storage devices, and all passwords to access the computers and devices so that defendant could make and search mirror images was denied. Under Fed. R. Civ. P. 34(a), the responding party was allowed to search his own records to produce material responsive to specific requests from the requesting party.
Defendant’s motion to compel plaintiff’s production of all his computers, electronic storage devices, and all passwords to access the computers and devices so that defendant could make and search mirror images was denied. Under Fed. R. Civ. P. 34(a), the responding party was allowed to search his own records to produce material responsive to specific requests from the requesting party.
Plew v. Limited Brands, Inc., 2009 U.S. Dist. LEXIS 39715 (S.D.N.Y. Apr. 23, 2009).
Under Fed. R. Civ. P. 26(b)(3), email between defendants and a non-party concerning plaintiff’s claims was protected from disclosure to plaintiff by the work product doctrine. The email from defendants to the non-party was prepared at the request of defendants’ counsel.
Under Fed. R. Civ. P. 26(b)(3), email between defendants and a non-party concerning plaintiff’s claims was protected from disclosure to plaintiff by the work product doctrine. The email from defendants to the non-party was prepared at the request of defendants’ counsel.
In re Motor Fuel Temperature Sales Practices Litigation, “Motor Fuel II”, 2009 U.S. Dist. LEXIS 34026 (D. Kan. Apr. 3, 2009).
The court denied requests from 150 defendants to be relieved from the obligation to review and log documents created since filing of the lawsuit and relating to communications among joint defense counsel or between counsel and a defendant. However, the court allowed defendants to log withheld privileged documents by category despite the obligation under Fed. R. Civ. P. 26(b)(5) to create a detailed privilege log.
The court denied requests from 150 defendants to be relieved from the obligation to review and log documents created since filing of the lawsuit and relating to communications among joint defense counsel or between counsel and a defendant. However, the court allowed defendants to log withheld privileged documents by category despite the obligation under Fed. R. Civ. P. 26(b)(5) to create a detailed privilege log.
Vega v. Amer Int'l Corp., 2009 U.S. Dist. LEXIS 30323 (M.D. Fla. Apr. 3, 2009).
A magistrate judge recommended entry of a default judgment as to liability pursuant to Fed. R. Civ. P. 37(b)(2)(A) against a defendant that indicated through counsel that business was bad, shop would be closed up, and discovery would not be answered.
A magistrate judge recommended entry of a default judgment as to liability pursuant to Fed. R. Civ. P. 37(b)(2)(A) against a defendant that indicated through counsel that business was bad, shop would be closed up, and discovery would not be answered.
Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009).
A defendant’s email preservation system that consisted of instructing employees to preserve email of long term value on their local computers, coupled with “very little evidence compared to what would be expected,” led the court to conclude that the “safe harbor” of Fed. R. Civ. P. 37(e) did not apply and that the defendant should be sanctioned for spoliation.
A defendant’s email preservation system that consisted of instructing employees to preserve email of long term value on their local computers, coupled with “very little evidence compared to what would be expected,” led the court to conclude that the “safe harbor” of Fed. R. Civ. P. 37(e) did not apply and that the defendant should be sanctioned for spoliation.
Fendi Adele S.R.L. v. Filene's Basement, Inc., 2009 U.S. Dist. LEXIS 32615 (S.D.N.Y. Mar. 24, 2009).
Plaintiff was entitled to reimbursement expenses “attributable to defendants’ repeated and extended discovery defaults,” but defendants were not required to pay plaintiff’s cost for obtaining and reviewing defendants’ backup tapes. Plaintiff had not addressed accessibility of the tapes or Zubulake and Fed. R. Civ. P. 26(b)(2)(C) cost shifting factors.
Plaintiff was entitled to reimbursement expenses “attributable to defendants’ repeated and extended discovery defaults,” but defendants were not required to pay plaintiff’s cost for obtaining and reviewing defendants’ backup tapes. Plaintiff had not addressed accessibility of the tapes or Zubulake and Fed. R. Civ. P. 26(b)(2)(C) cost shifting factors.
ClearValue, Inc. v. Pearl River Polymers, Inc., 2009 U.S. App. LEXIS 6061 (Fed. Cir. Mar. 24, 2009).
The court reversed sanctions that included striking plaintiffs’ pleadings, entering judgment for defendants, invalidating plaintiff’s patent, and awarding defendants $1.6 million in attorney fees as prevailing parties. The sanctions resulted from plaintiffs’ violation of a discovery order and thus should have been imposed under Fed. R. Civ. P. 37 rather than under the trial court’s inherent power.
The court reversed sanctions that included striking plaintiffs’ pleadings, entering judgment for defendants, invalidating plaintiff’s patent, and awarding defendants $1.6 million in attorney fees as prevailing parties. The sanctions resulted from plaintiffs’ violation of a discovery order and thus should have been imposed under Fed. R. Civ. P. 37 rather than under the trial court’s inherent power.
Technical Sales Associates, Inc. v. Ohio Star Forge Co., 2009 U.S. Dist. LEXIS 22431 (E.D. Mich. Mar. 19, 2009).
Sanctions against defendant were deemed appropriate because intentional deletion of evidence by defendant just prior to forensic examination was not protected by the safe harbor provision of Fed. R. Civ. P. 37(e) for information lost from the routine, good faith operation of an electronic information system.
Sanctions against defendant were deemed appropriate because intentional deletion of evidence by defendant just prior to forensic examination was not protected by the safe harbor provision of Fed. R. Civ. P. 37(e) for information lost from the routine, good faith operation of an electronic information system.
Murphy v. Colorado Department of Corrections, 2009 U.S. Dist. LEXIS 21673 (D. Colo. Mar. 6, 2009).
Plaintiff’s motion for in camera review by the court of email that defendant claimed was privileged was denied. Defendant adequately described the email pursuant to Fed. R. Civ. P. 26(b)(5) to allow plaintiff to assess applicability of the attorney-client privilege to the email.
Plaintiff’s motion for in camera review by the court of email that defendant claimed was privileged was denied. Defendant adequately described the email pursuant to Fed. R. Civ. P. 26(b)(5) to allow plaintiff to assess applicability of the attorney-client privilege to the email.
In re Fannie Mae Securities Litigation, 2009 U.S. App. LEXIS 9 (D.C. Cir. Jan. 6, 2009).
Although appreciative of a federal regulatory agency’s hiring of 50 contract attorneys and expense of more than nine percent of the agency’s annual budget in order to comply with a stipulated discovery order, a U.S. Court of Appeals affirmed a trial court finding of contempt against the agency for efforts that were “too little, too late.” The court also affirmed a sanction requiring the agency to produce (although without waiver of privilege) deliberative process privilege documents of the agency that had not been logged within a deadline for privilege logs.
Although appreciative of a federal regulatory agency’s hiring of 50 contract attorneys and expense of more than nine percent of the agency’s annual budget in order to comply with a stipulated discovery order, a U.S. Court of Appeals affirmed a trial court finding of contempt against the agency for efforts that were “too little, too late.” The court also affirmed a sanction requiring the agency to produce (although without waiver of privilege) deliberative process privilege documents of the agency that had not been logged within a deadline for privilege logs.
MSC.Software Corp. v. Altair Engineering, Inc., 2008 U.S. Dist. LEXIS 105570 (E.D. Mich. Dec. 22, 2008).
A response to a request for production of documents that responsive documents were contained in tens of thousands of web-based collaboration system pages produced in searchable format on an external hard drive or USB flash memory was sufficient under Fed. R. Civ. P. 34(b)(2)(E)(ii). Plaintiff had not specified a form of production, and the production was an efficient way to deliver a mass amount of electronic information.
A response to a request for production of documents that responsive documents were contained in tens of thousands of web-based collaboration system pages produced in searchable format on an external hard drive or USB flash memory was sufficient under Fed. R. Civ. P. 34(b)(2)(E)(ii). Plaintiff had not specified a form of production, and the production was an efficient way to deliver a mass amount of electronic information.
Arista Records LLC v. Doe, "Doe lll", 2008 U.S. Dist. LEXIS 99791 (D. Conn. Dec. 9, 2008).
Plaintiff record companies were granted permission to serve Fed. R. Civ. P. 45 subpoenas on Yale University and the University of Connecticut in order to identify “Doe” defendants at the universities who allegedly infringed upon plaintiffs’ copyrights through file sharing on the internet services provided by the universities.
Plaintiff record companies were granted permission to serve Fed. R. Civ. P. 45 subpoenas on Yale University and the University of Connecticut in order to identify “Doe” defendants at the universities who allegedly infringed upon plaintiffs’ copyrights through file sharing on the internet services provided by the universities.
Gateway Senior Housing, Ltd. v. MMA Financial, Inc., 2008 U.S. Dist. LEXIS 98770 (E.D. Tex. Dec. 4, 2008).
Defendant waived privilege over four email communications found by a court-appointed e-discovery consultant on defendant’s computer network because defendant had failed to list the email in a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A). Also, a “permissive” adverse inference presumption sanction was issued against defendant as a result of unexplained losses of information on hard drives from computers of two key employees.
Defendant waived privilege over four email communications found by a court-appointed e-discovery consultant on defendant’s computer network because defendant had failed to list the email in a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A). Also, a “permissive” adverse inference presumption sanction was issued against defendant as a result of unexplained losses of information on hard drives from computers of two key employees.
Alcon Mfg. v. Apotex, Inc., 2008 U.S. Dist. LEXIS 96630 (S.D. Ind. Nov. 26, 2008).
Inadvertent production of a privileged document due to an electronic document break error did not result in waiver of privilege for the document. Double-checking disclosures against a privilege log might have avoided the inadvertent production, but that “type of expensive, painstaking review,” according to the court, was “precisely what new Evidence Rule 502” was “designed to avoid.”
Inadvertent production of a privileged document due to an electronic document break error did not result in waiver of privilege for the document. Double-checking disclosures against a privilege log might have avoided the inadvertent production, but that “type of expensive, painstaking review,” according to the court, was “precisely what new Evidence Rule 502” was “designed to avoid.”
Rhoads Industries, Inc. v. Building Materials Corp. of America, "Rhoads II", 2008 U.S. Dist. LEXIS 96404 (E.D. Pa. Nov. 26, 2008).
A plaintiff that failed to provide a privilege log pursuant to Fed. R. Civ. P. 26(b)(5) waived privilege over the most recent email in a string that should have been logged but did not waive privilege over earlier email in the string that had been logged.
A plaintiff that failed to provide a privilege log pursuant to Fed. R. Civ. P. 26(b)(5) waived privilege over the most recent email in a string that should have been logged but did not waive privilege over earlier email in the string that had been logged.
Rhoads Industries, Inc. v. Building Materials Corp. of America, 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008).
Inadvertently disclosed privileged documents not promptly listed on a log pursuant to Fed. R. Civ. P. 26(b)(5) did not have to be returned to plaintiff. However, under recently-enacted Fed. R. Evid. 502, plaintiff was entitled to return of inadvertently produced but promptly logged privileged documents. While plaintiff should have been better prepared for privilege review, return of the privileged documents to plaintiff was in the interest of justice and defendant had not met its burden of proof in showing any prejudice from having to return the documents.
Inadvertently disclosed privileged documents not promptly listed on a log pursuant to Fed. R. Civ. P. 26(b)(5) did not have to be returned to plaintiff. However, under recently-enacted Fed. R. Evid. 502, plaintiff was entitled to return of inadvertently produced but promptly logged privileged documents. While plaintiff should have been better prepared for privilege review, return of the privileged documents to plaintiff was in the interest of justice and defendant had not met its burden of proof in showing any prejudice from having to return the documents.
Integrated Service Solutions, Inc. v. Rodman, 2008 U.S. Dist. LEXIS 101653 (E.D. Pa. Nov. 3, 2008).
The court refused to permit plaintiff “to thumb through an electronic file drawer to double-check” a third party’s document review after counsel for the third party represented that the only documents found on a laptop and responsive to a Fed. R. Civ. P. 45 subpoena were irrelevant and could not lead to the discovery of admissible evidence.
The court refused to permit plaintiff “to thumb through an electronic file drawer to double-check” a third party’s document review after counsel for the third party represented that the only documents found on a laptop and responsive to a Fed. R. Civ. P. 45 subpoena were irrelevant and could not lead to the discovery of admissible evidence.
Dong Ah Tire & Rubber Co. v. Glasforms, Inc., 2008 U.S. Dist. LEXIS 90708 (N.D. Cal. Oct. 29, 2008).
The duty under Fed. R. Civ. P. 26(e)(1) to supplement production of documents did not cover email generated after the relevant time frame of the production of documents.
The duty under Fed. R. Civ. P. 26(e)(1) to supplement production of documents did not cover email generated after the relevant time frame of the production of documents.
Cintas Corp. No. 2 v. Transcontinental Granite, Inc., 2008 Va. Cir. LEXIS 153 (Va. Cir. Ct. Oct. 27, 2008).
Under a Virginia rule with operative language identical to Fed. R. Civ. P. 26(b)(3), the court held that work product protection for a document applied to documents prepared in anticipation of any litigation rather than in anticipation only of the litigation in which the work product protection was asserted.
Under a Virginia rule with operative language identical to Fed. R. Civ. P. 26(b)(3), the court held that work product protection for a document applied to documents prepared in anticipation of any litigation rather than in anticipation only of the litigation in which the work product protection was asserted.
Allcare Dental Mgmt., LLC v. Zrinyi, 2008 U.S. Dist. LEXIS 84015 (D. Idaho Oct. 20, 2008).
Plaintiff’s request for expedited discovery before the mandatory Fed. R. Civ. P. 26(d)(1) pre-discovery conference was granted to allow the mirror imaging of computer hard drives of defendants who plaintiffs suggested had evaded service in other matters.
Plaintiff’s request for expedited discovery before the mandatory Fed. R. Civ. P. 26(d)(1) pre-discovery conference was granted to allow the mirror imaging of computer hard drives of defendants who plaintiffs suggested had evaded service in other matters.
Mancia v. Mayflower Textile Servs Co., 2008 U.S. Dist. LEXIS 83740 (D. Md. Oct. 15, 2008).
Before proceeding further on a discovery dispute, the court ordered the parties to meet while keeping in mind the statement in Fed. R. Civ. P. 26(g)(1)(B)(iii) that discovery must be proportional to what is at stake in the litigation.
Before proceeding further on a discovery dispute, the court ordered the parties to meet while keeping in mind the statement in Fed. R. Civ. P. 26(g)(1)(B)(iii) that discovery must be proportional to what is at stake in the litigation.
Pass & Seymour, Inc. v. Hubbell, Inc., 2008 U.S. Dist. LEXIS 85380 (N.D.N.Y Sept. 12, 2008).
While Fed. R. Civ. P. 34(b) permitted production of documents as the documents were ordinarily retained, production of 405,367 text-searchable pages of documents in 202 unlabeled folders failed to include information needed to make the production useful to the requesting party and failed to meet the requirements of Rule 34. The court ordered the producing party to provide an index of the documents listing the custodian, location, and general description of the filing system applicable to each document.
While Fed. R. Civ. P. 34(b) permitted production of documents as the documents were ordinarily retained, production of 405,367 text-searchable pages of documents in 202 unlabeled folders failed to include information needed to make the production useful to the requesting party and failed to meet the requirements of Rule 34. The court ordered the producing party to provide an index of the documents listing the custodian, location, and general description of the filing system applicable to each document.
Flagg v. City of Detroit, "Flagg II", 2008 U.S. Dist. LEXIS 64735 ( E.D. Mich. Aug. 22, 2008).
Whether discovery through a subpoena of copies of customer text messages held by a text messaging service provider was barred by the Stored Communications Act remained an open question after the court ordered plaintiff to convert its subpoena to a Fed. R. Civ. P. 34 request to defendants for production of documents held by the service provider but effectively under defendants’ control.
Whether discovery through a subpoena of copies of customer text messages held by a text messaging service provider was barred by the Stored Communications Act remained an open question after the court ordered plaintiff to convert its subpoena to a Fed. R. Civ. P. 34 request to defendants for production of documents held by the service provider but effectively under defendants’ control.
White v. Graceland College Center for Professional Development & Lifelong Learning, Inc., "White I", 2008 U.S. Dist. LEXIS 63088 (D. Kan. Aug. 7, 2008).
Defendants who converted email into .pdf documents and produced the .pdf documents in response to plaintiff’s discovery requests were ordered to produce the email again in its native format. Fed. R. Civ. P. 34(b)(2)(E)(ii) required production of electronically stored information in the form in which it usually is maintained or in a “reasonably useful” form, and the email production had to have its metadata intact in order to be useful to plaintiff.
Defendants who converted email into .pdf documents and produced the .pdf documents in response to plaintiff’s discovery requests were ordered to produce the email again in its native format. Fed. R. Civ. P. 34(b)(2)(E)(ii) required production of electronically stored information in the form in which it usually is maintained or in a “reasonably useful” form, and the email production had to have its metadata intact in order to be useful to plaintiff.
Suarez Corporation Industries v. Earthwise Technologies, Inc., 2008 U.S. Dist. LEXIS 66560 (W.D. Wash. July 17, 2008).
While the party requesting production of documents could not, pursuant to Fed. R. Civ. P. 34(b)(2)(E), instruct the producing party on how to organize the production, the producing party at least had to communicate how its documents were determined to be responsive and how the documents were kept in the ordinary course of business.
While the party requesting production of documents could not, pursuant to Fed. R. Civ. P. 34(b)(2)(E), instruct the producing party on how to organize the production, the producing party at least had to communicate how its documents were determined to be responsive and how the documents were kept in the ordinary course of business.
Cason-Merenda v. Detroit Medical Center, 2008 U.S. Dist. LEXIS 51962 (E.D. Mich. Jul. 7, 2008).
A motion for an order requiring plaintiff to pay half of a defendant’s third party vendor electronic discovery costs was denied. Defendant’s cost-sharing motion was filed after defendant had incurred the costs, and a sensible reading of Fed. R. Civ. P. 26(b)(2)(B) required that a party must seek protection from undue expense before incurring the expense.
A motion for an order requiring plaintiff to pay half of a defendant’s third party vendor electronic discovery costs was denied. Defendant’s cost-sharing motion was filed after defendant had incurred the costs, and a sensible reading of Fed. R. Civ. P. 26(b)(2)(B) required that a party must seek protection from undue expense before incurring the expense.
Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 U.S. Dist. LEXIS 71863 (N.D. Ind. May 27, 2008).
A defendant that produced email in native format on a computer accessible disk was not required to produce the email again in the form of “Static Images” with a number identifier. Fed. R. Civ. P. 34 required production of the email only in the format in which it was kept, absent a request for its production in some other form.
A defendant that produced email in native format on a computer accessible disk was not required to produce the email again in the form of “Static Images” with a number identifier. Fed. R. Civ. P. 34 required production of the email only in the format in which it was kept, absent a request for its production in some other form.
L.H. v. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829 (E.D. Cal. May 14, 2008).
State officials in California were sanctioned for late production of documents and inadequate privilege logs. Also, production of documents in a .pdf format failed to meet the requirement of Fed. R. Civ. P. 34(b) to produce documents in a "reasonably usable form" that would allow searching and sorting of the documents.
State officials in California were sanctioned for late production of documents and inadequate privilege logs. Also, production of documents in a .pdf format failed to meet the requirement of Fed. R. Civ. P. 34(b) to produce documents in a "reasonably usable form" that would allow searching and sorting of the documents.
Brown v. Chertoff, 2008 U.S. Dist. LEXIS 39569 (S.D. Ga. May 14, 2008).
A plaintiff’s discovery definitions in a prior administrative proceeding that did not include electronically stored information had no significance in a subsequent federal court action in which Fed. R. Civ. P. 34 requests for production of documents were understood to include electronically stored information.
A plaintiff’s discovery definitions in a prior administrative proceeding that did not include electronically stored information had no significance in a subsequent federal court action in which Fed. R. Civ. P. 34 requests for production of documents were understood to include electronically stored information.
Petersen v. Union Pacific R.R. Co., 2008 U.S. Dist. LEXIS 35721 (C.D. Ill. May 1, 2008).
Failure of plaintiffs to request discovery relating to the meaning of a data readout until after the close of discovery led the court to deny the discovery request and to consider imposing costs on plaintiffs.
Failure of plaintiffs to request discovery relating to the meaning of a data readout until after the close of discovery led the court to deny the discovery request and to consider imposing costs on plaintiffs.
Arista Records LLC v. Doe, "Doe l", 2008 U.S. Dist. LEXIS 34405 (D.D.C. Apr. 28, 2008).
The need of recording companies in a copyright infringement action for identification of file-sharing internet users sought through a Fed. R. Civ. P. 45 subpoena outweighed any First Amendment rights of the users. Those rights were “exceedingly small” when the “speech” involved was alleged infringement of copyrighted materials.
The need of recording companies in a copyright infringement action for identification of file-sharing internet users sought through a Fed. R. Civ. P. 45 subpoena outweighed any First Amendment rights of the users. Those rights were “exceedingly small” when the “speech” involved was alleged infringement of copyrighted materials.
Mikron Indus. v. Hurd Windows & Doors, Inc., 2008 U.S. Dist. LEXIS 35166 (W.D. Wash. Apr. 21, 2008).
Defendants’ request to have plaintiff pay defendants’ costs of searching for data was denied because defendants had failed to provide a detailed explanation of their difficulties in providing electronically stored information. Such a detailed explanation was required by Fed. R. Civ. P. 26(c)’s meet and confer requirement and Rule 26(b)(2)’s requirement to show that additional sources of data were not reasonably accessible.
Defendants’ request to have plaintiff pay defendants’ costs of searching for data was denied because defendants had failed to provide a detailed explanation of their difficulties in providing electronically stored information. Such a detailed explanation was required by Fed. R. Civ. P. 26(c)’s meet and confer requirement and Rule 26(b)(2)’s requirement to show that additional sources of data were not reasonably accessible.
Interscope Records v. Does, 2008 U.S. Dist. LEXIS 30026 (D. Kan. Apr. 11, 2008).
Motions of “Doe” defendants to quash Fed. R. Civ. P. 45 subpoenas from record companies to defendants’ university seeking information identifying the defendants were denied. The defendants “had little expectation of privacy because they opened their computers to others through peer-to-peer file sharing.”
Motions of “Doe” defendants to quash Fed. R. Civ. P. 45 subpoenas from record companies to defendants’ university seeking information identifying the defendants were denied. The defendants “had little expectation of privacy because they opened their computers to others through peer-to-peer file sharing.”
Autotech Technologies Limited Partnership v. AutomationDirect.com, Inc.,, 2008 U.S. Dist. LEXIS 27962 (N.D. Ill. Apr. 2, 2008).
A party that did not specify production of documents in electronic form with metadata intact was not entitled under Fed. R. Civ. P. 34(b)(2)(E) to an electronic copy of a document already produced in .pdf format and in paper format and containing a nine-page written history of changes that had been made to the document.
A party that did not specify production of documents in electronic form with metadata intact was not entitled under Fed. R. Civ. P. 34(b)(2)(E) to an electronic copy of a document already produced in .pdf format and in paper format and containing a nine-page written history of changes that had been made to the document.
Texas v. City of Frisco, 2008 U.S. Dist. LEXIS 24353 (E.D. Tex. Mar. 27, 2008).
A state’s request for a protective order and declaratory judgment as to its obligations to preserve electronic evidence under Fed. R. Civ. P. 26(f) and 34 was dismissed. A notice of potential litigation against the state requesting preservation of electronic evidence did not present an actual controversy that would confer jurisdiction on the court to make a ruling.
A state’s request for a protective order and declaratory judgment as to its obligations to preserve electronic evidence under Fed. R. Civ. P. 26(f) and 34 was dismissed. A notice of potential litigation against the state requesting preservation of electronic evidence did not present an actual controversy that would confer jurisdiction on the court to make a ruling.
Baker v. Gerould, 2008 U.S. Dist. LEXIS 28628 (W.D.N.Y. Mar. 27, 2008).
Before requiring defendant to restore deleted electronic communications, the court ordered plaintiff to depose a representative of defendant concerning defendant’s search for such communications that were accessible. The court could then determine whether a further search of other sources that were not reasonably accessible remained necessary within the meaning of Advisory Committee notes to the 2006 amendments to Fed. R. Civ. P. 26(b)(2).
Before requiring defendant to restore deleted electronic communications, the court ordered plaintiff to depose a representative of defendant concerning defendant’s search for such communications that were accessible. The court could then determine whether a further search of other sources that were not reasonably accessible remained necessary within the meaning of Advisory Committee notes to the 2006 amendments to Fed. R. Civ. P. 26(b)(2).
Flagg v. City of Detroit, 2008 U.S. Dist. LEXIS 21923 (E.D. Mich. Mar. 20, 2008).
Defendants’ motion to quash plaintiff’s Fed. R. Civ. P. 45 subpoenas to a text messaging service used by defendants was denied. The burdensomeness argument of defendants was rejected because the service acknowledged it was prepared to comply with the subpoenas.
Defendants’ motion to quash plaintiff’s Fed. R. Civ. P. 45 subpoenas to a text messaging service used by defendants was denied. The burdensomeness argument of defendants was rejected because the service acknowledged it was prepared to comply with the subpoenas.
Petcou v. C.H. Robinson Worldwide, Inc., 2008 U.S. Dist. LEXIS 13723 (N.D. Ga. Feb. 25, 2008).
Defendant met its burden pursuant to Fed. R. Civ. P. 26(b)(2)(B) to show that deleted email was not reasonably accessible because the cost of retrieving about two years' worth of email for just one employee was about $79,300. The court ordered only production of email that was unlikely to cause undue burden and decided that a search of backup tapes would not be required.
Defendant met its burden pursuant to Fed. R. Civ. P. 26(b)(2)(B) to show that deleted email was not reasonably accessible because the cost of retrieving about two years' worth of email for just one employee was about $79,300. The court ordered only production of email that was unlikely to cause undue burden and decided that a search of backup tapes would not be required.
United States v. O'Keefe, 2008 U.S. Dist. LEXIS 12220 (D.D.C. Feb. 18, 2008).
Citing Fed. R. Civ. P. 37(e) as an analogue, the court held that the government in a criminal case did not violate the Due Process Clause if it destroyed electronic evidence pursuant to a neutral policy and without any evidence of bad faith "if the evidence was destroyed before the defendants raised the possibility that it was exculpatory and the government had no objective reason to believe that it was exculpatory."
Citing Fed. R. Civ. P. 37(e) as an analogue, the court held that the government in a criminal case did not violate the Due Process Clause if it destroyed electronic evidence pursuant to a neutral policy and without any evidence of bad faith "if the evidence was destroyed before the defendants raised the possibility that it was exculpatory and the government had no objective reason to believe that it was exculpatory."
Henry v. Quicken Loans, Inc., "Quicken II", 2008 U.S. Dist. LEXIS 11417 (E.D. Mich. Feb. 15, 2008).
Defendants were ordered to pay additional costs of screening their email for privileged documents because an earlier screen of first names of legal personnel screened out non-legal personnel with the same name.
Defendants were ordered to pay additional costs of screening their email for privileged documents because an earlier screen of first names of legal personnel screened out non-legal personnel with the same name.
Simon Property Group, Inc. v. Taubman Centers, Inc., 2008 U.S. Dist. LEXIS 5065 (E.D. Mich. Jan. 24, 2008).
A non-party that objected to a subpoena that would require three employees to search servers for four weeks waived its objection by failing to object within the time allowed by Fed. R. Civ. P. 45(c)(2)(B). However, the court ordered the parties to make a good faith attempt to narrow the scope of the subpoena.
A non-party that objected to a subpoena that would require three employees to search servers for four weeks waived its objection by failing to object within the time allowed by Fed. R. Civ. P. 45(c)(2)(B). However, the court ordered the parties to make a good faith attempt to narrow the scope of the subpoena.
D'Onofrio v. Sfx Sports Group, Inc., 2008 U.S. Dist. LEXIS 4252 (D.D.C. Jan. 23, 2008).
A request for production of documents with language traditionally used to refer to paper files could not be read to require production of electronic files in their original electronic form with metadata because the request did not specify the form of production of electronic data as required by Fed. R. Civ. P. 34(b).
A request for production of documents with language traditionally used to refer to paper files could not be read to require production of electronic files in their original electronic form with metadata because the request did not specify the form of production of electronic data as required by Fed. R. Civ. P. 34(b).
Peacock v. Merrill, 2008 U.S. Dist. LEXIS 3751 (S.D. Ala. Jan. 17, 2008).
Defendants' request for an exact copy of a computer disk that plaintiff contended had hundreds of irrelevant and confidential documents was denied. However, defendants were permitted pursuant to Fed. R. Civ. P. 34(b) to inspect an exact copy of the disk at the office of plaintiff's counsel for tagging and copying of documents deemed relevant by defendants' counsel.
Defendants' request for an exact copy of a computer disk that plaintiff contended had hundreds of irrelevant and confidential documents was denied. However, defendants were permitted pursuant to Fed. R. Civ. P. 34(b) to inspect an exact copy of the disk at the office of plaintiff's counsel for tagging and copying of documents deemed relevant by defendants' counsel.
Kellogg v. Nike, Inc., 2007 U.S. Dist. LEXIS 95629 (D. Neb. Dec. 26, 2007).
Disclosure by defendants at a Rule 30(b)(6) deposition of their policy for retention of electronic documents led the court to deny plaintiff's request for further disclosure pursuant to Rule 26(f)(3) of responsive information concerning electronically stored information.
Disclosure by defendants at a Rule 30(b)(6) deposition of their policy for retention of electronic documents led the court to deny plaintiff's request for further disclosure pursuant to Rule 26(f)(3) of responsive information concerning electronically stored information.
Committee Concerning Community Improvement v. City of Modesto, 2007 U.S. Dist. LEXIS 94328 (E.D. Cal. Dec. 11, 2007).
While acknowledging that costs of exemplification and copying of electronic documents may be costs that can be awarded to a winning party, costs of set up fees, online review, and technical time of a provider that synthesized and uploaded over a million email documents for document production were not costs that could be awarded. Any burdensomeness of the denied costs should have been raised in a motion for a protective order on the basis of Fed. R. Civ. P. 26(b)(2)(B).
While acknowledging that costs of exemplification and copying of electronic documents may be costs that can be awarded to a winning party, costs of set up fees, online review, and technical time of a provider that synthesized and uploaded over a million email documents for document production were not costs that could be awarded. Any burdensomeness of the denied costs should have been raised in a motion for a protective order on the basis of Fed. R. Civ. P. 26(b)(2)(B).
Palgut v. City of Colorado Springs, 2007 U.S. Dist. LEXIS 91719 (D. Colo. Dec. 3, 2007).
A plaintiff without a qualifying reason was no more entitled to access to electronic information than to paper documents following amendments in 2006 to Fed. R. Civ. P. 34.
A plaintiff without a qualifying reason was no more entitled to access to electronic information than to paper documents following amendments in 2006 to Fed. R. Civ. P. 34.
Best Buy Stores, L.P. v. Developers Diversified Realty Corp., "Best Buy II", 2007 U.S. Dist. LEXIS 88771 (D. Minn. Nov. 30, 2007).
Plaintiff was not required to restore a database compiled for other litigation in order to permit discovery of the database by defendants. The database was inaccessible within the meaning of Fed. R. Civ. P. 26(b)(2)(B) because it would have to be re-compiled from original sources such as backup tapes.
Plaintiff was not required to restore a database compiled for other litigation in order to permit discovery of the database by defendants. The database was inaccessible within the meaning of Fed. R. Civ. P. 26(b)(2)(B) because it would have to be re-compiled from original sources such as backup tapes.
Cambrians for Thoughtful Development, U.A. v. Didion Milling, Inc., 2007 U.S. Dist. LEXIS 88878 (W.D. Wisc. Nov. 27, 2007).
Email from a company's outside counsel to the company's employees and consultants regarding an administrative agency's enforcement conference was work product protected under Fed. R. Civ. P. 26(b)(3) from discovery in a citizen suit against the company.
Email from a company's outside counsel to the company's employees and consultants regarding an administrative agency's enforcement conference was work product protected under Fed. R. Civ. P. 26(b)(3) from discovery in a citizen suit against the company.
U & I Corp. v. Advanced Medical Design, Inc., 2007 U.S. Dist. LEXIS 86530 (M.D. Fla. Nov. 26, 2007).
Defendant's motion to compel inspection of plaintiff's "unloadable" hard drive was deferred pending third party discovery that could produce copies of the unloadable email and pending plaintiff's explanation of its efforts to retrieve the unloadable files.
Defendant's motion to compel inspection of plaintiff's "unloadable" hard drive was deferred pending third party discovery that could produce copies of the unloadable email and pending plaintiff's explanation of its efforts to retrieve the unloadable files.
Parkdale America, LLC v. Travelers Casualty and Surety Company of America, Inc., 2007 U.S. Dist. LEXIS 88820 (W.D.N.C. Nov. 19, 2007).
Companies seeking insurance coverage of their settlements of antitrust claims were obligated under Fed. R. Civ. P. 26(b)(2)(B) to provide the insurer with additional email because they failed to show that their cost of additional production outweighed the importance of the proposed discovery in resolving critical factual issues.
Companies seeking insurance coverage of their settlements of antitrust claims were obligated under Fed. R. Civ. P. 26(b)(2)(B) to provide the insurer with additional email because they failed to show that their cost of additional production outweighed the importance of the proposed discovery in resolving critical factual issues.
Michigan First Credit Union v. Cumis Insurance Society, Inc., "Michigan II", 2007 U.S. Dist. LEXIS 84842 (E.D. Mich. Nov. 16, 2007).
Defendant was not required to produce electronically stored information with metadata or in native format because Fed. R. Civ. P. 34 did not explicitly require production of metadata and the burden of such production outweighed its value.
Defendant was not required to produce electronically stored information with metadata or in native format because Fed. R. Civ. P. 34 did not explicitly require production of metadata and the burden of such production outweighed its value.
Garcia v. Berkshire Life Insurance Company of America, 2007 U.S. Dist. LEXIS 86639 (D. Colo. Nov. 13, 2007).
Plaintiff's counsel was obligated to seek computer-knowledgeable assistance to learn the true contents of a DVD containing plaintiff's email once defense counsel pointed out that over 4,000 email documents on the DVD had not been included in plaintiff's hard copy production.
Plaintiff's counsel was obligated to seek computer-knowledgeable assistance to learn the true contents of a DVD containing plaintiff's email once defense counsel pointed out that over 4,000 email documents on the DVD had not been included in plaintiff's hard copy production.
Ex parte Cooper Tire & Rubber Co., 2007 Ala. LEXIS 229 (Ala. Oct. 26, 2007).
The Alabama Supreme Court has concluded that Fed. R. Civ. P. 26(b)(2)(B) and Wiginton factors (Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 571-73 (N.D. Ill. 2004)) should be used in considering the extent to which parties in Alabama state court actions must respond to discovery requests for electronically stored information.
The Alabama Supreme Court has concluded that Fed. R. Civ. P. 26(b)(2)(B) and Wiginton factors (Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 571-73 (N.D. Ill. 2004)) should be used in considering the extent to which parties in Alabama state court actions must respond to discovery requests for electronically stored information.
RLI Insurance Co. v. Indian River School District, 2007 U.S. Dist. LEXIS 78419 (D. Del. Oct. 23, 2007).
Plaintiff's motion to compel production of electronic documents in accordance with the court's default standard for such discovery was denied. The motion was filed after discovery was closed, plaintiff had not raised the issue of e-discovery prior to the Rule 16 Conference as required by Fed. R. Civ. P. 26(f)(3), and no failure to produce relevant email had been shown.
Plaintiff's motion to compel production of electronic documents in accordance with the court's default standard for such discovery was denied. The motion was filed after discovery was closed, plaintiff had not raised the issue of e-discovery prior to the Rule 16 Conference as required by Fed. R. Civ. P. 26(f)(3), and no failure to produce relevant email had been shown.
Robinson v. Moran, 2007 U.S. Dist. LEXIS 74617 (C.D. Ill. Oct. 5, 2007).
Sanctions against parties for failing to disclose relevant information as part of their initial disclosure under Fed. R. Civ. P. 26(a)(1)(B) were denied because at the time of initial disclosure, a "party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use."
Sanctions against parties for failing to disclose relevant information as part of their initial disclosure under Fed. R. Civ. P. 26(a)(1)(B) were denied because at the time of initial disclosure, a "party is no longer obligated to disclose witnesses or documents, whether favorable or unfavorable, that it does not intend to use."
In re Ebay Seller Antitrust Litigation, 2007 U.S. Dist. LEXIS 75498 (N.D. Cal. Oct. 2, 2007).
Defendant was not obligated to produce copies of document retention notices sent to 600 of its employees but was obligated to disclose which employees received the notices and what the employees had done in response to the notices.
Defendant was not obligated to produce copies of document retention notices sent to 600 of its employees but was obligated to disclose which employees received the notices and what the employees had done in response to the notices.
Interscope Records v. Doe, 2007 U.S. Dist. LEXIS 73627 (D. Kan. Oct. 1, 2007).
An ex parte application to issue a subpoena to a university to determine who used the university's computers to share music files was granted because logs could be erased within days and nothing in recent changes to Fed. R. Civ. P. 45 prohibited such an ex parte subpoena.
An ex parte application to issue a subpoena to a university to determine who used the university's computers to share music files was granted because logs could be erased within days and nothing in recent changes to Fed. R. Civ. P. 45 prohibited such an ex parte subpoena.
Schmidt v. Levi Strauss & Co., 2007 U.S. Dist. LEXIS 69791 (N.D. Cal. Sept. 10, 2007).
Plaintiffs' request for an order directing defendant to re-produce its entire paper document production in native electronic format was denied. Plaintiffs had not originally specified production in electronic format pursuant to Fed. R. Civ. P. 34(b), the request for the order came six months after the close of discovery, and plaintiffs could seek production in electronic format of particular documents that were not usable or readable in hard copy format.
Plaintiffs' request for an order directing defendant to re-produce its entire paper document production in native electronic format was denied. Plaintiffs had not originally specified production in electronic format pursuant to Fed. R. Civ. P. 34(b), the request for the order came six months after the close of discovery, and plaintiffs could seek production in electronic format of particular documents that were not usable or readable in hard copy format.
Lawson v. Sun Microsystems, Inc., 2007 U.S. Dist. LEXIS 65530 (S.D. Ind. Sept. 4, 2007).
Defendant was ordered pursuant to Fed. R. Civ. P. 34(b)(ii) to produce all responsive electronically stored information in electronic form because plaintiff by letter prior to defendant's hard copy production had requested electronic form.
Defendant was ordered pursuant to Fed. R. Civ. P. 34(b)(ii) to produce all responsive electronically stored information in electronic form because plaintiff by letter prior to defendant's hard copy production had requested electronic form.
Haka v. Lincoln County, 2007 U.S. Dist. LEXIS 64480 (W.D. Wisc. Aug. 29, 2007).
In an incremental process, plaintiff was ordered to provide a narrow set of search words for a search of email within four terabytes of defendant's information potentially responsive to plaintiff's discovery requests. The court also ordered the parties to share the cost of the initial search equally while defendant would pay all of the cost of a privilege review of the documents produced by the initial search.
In an incremental process, plaintiff was ordered to provide a narrow set of search words for a search of email within four terabytes of defendant's information potentially responsive to plaintiff's discovery requests. The court also ordered the parties to share the cost of the initial search equally while defendant would pay all of the cost of a privilege review of the documents produced by the initial search.
Auto Club Family Ins. Co. v. Ahner, 2007 U.S. Dist. LEXIS 63809 (E.D. La. Aug. 29, 2007).
A third party insurance adjuster that provided a hard copy of its entire file relating to the claim of homeowners was ordered to produce an electronic version of the file. A statement by the third party's lawyer that the electronic version was not reasonably accessible was not "evidence" of undue burden or cost under Fed. R. Civ. P. 45(d)(1)(D) in order to excuse production in electronic format.
A third party insurance adjuster that provided a hard copy of its entire file relating to the claim of homeowners was ordered to produce an electronic version of the file. A statement by the third party's lawyer that the electronic version was not reasonably accessible was not "evidence" of undue burden or cost under Fed. R. Civ. P. 45(d)(1)(D) in order to excuse production in electronic format.
Peskoff v. Faber, 2007 U.S. Dist. LEXIS 62595 (D.D.C. Aug. 27, 2007).
Under Fed. R. Civ. P. 26(b)(2)(C), counsel for the parties were ordered to "collaborate" with the court in seeking bids from qualified forensic computer technicians to determine the cost to conduct a forensic examination of computers and a server used by plaintiff's former employer.
Under Fed. R. Civ. P. 26(b)(2)(C), counsel for the parties were ordered to "collaborate" with the court in seeking bids from qualified forensic computer technicians to determine the cost to conduct a forensic examination of computers and a server used by plaintiff's former employer.
Grant v. Homier Distributing Co., 2007 U.S. Dist. LEXIS 63083 (N.D. Ind. Aug. 24, 2007).
A defendant that made no argument that discovery sought by plaintiff was unduly burdensome or excessive in terms of cost was ordered to pay for the discovery it had produced. The court allowed defendant to produce future discovery in whatever form defendant chose but presumed defendant would choose to produce discovery in electronic format if that was the cheapest option.
A defendant that made no argument that discovery sought by plaintiff was unduly burdensome or excessive in terms of cost was ordered to pay for the discovery it had produced. The court allowed defendant to produce future discovery in whatever form defendant chose but presumed defendant would choose to produce discovery in electronic format if that was the cheapest option.
In re Seroquel Products Liability Litigation, 2007 U.S. Dist. LEXIS 61287 (M.D. Fla. Aug. 21, 2007).
A drug company's failure to cooperate in the production of databases or to produce electronic discovery from 80 custodians was sanctionable conduct. The court reserved ruling on appropriate sanctions while plaintiffs produced evidence of prejudice and additional expenses caused by the conduct.
A drug company's failure to cooperate in the production of databases or to produce electronic discovery from 80 custodians was sanctionable conduct. The court reserved ruling on appropriate sanctions while plaintiffs produced evidence of prejudice and additional expenses caused by the conduct.
Butler v. Kmart Corp., 2007 U.S. Dist. LEXIS 61141 (N.D. Miss. Aug. 20, 2007).
Defendant's failure to describe efforts to search for electronically stored information led the court to order a thorough search by defendant of its computer systems. However, the court denied open access to defendant's systems by plaintiff's expert because Fed. R. Civ. P. 34(a) did not give a requesting party the right to search the responding party's records.
Defendant's failure to describe efforts to search for electronically stored information led the court to order a thorough search by defendant of its computer systems. However, the court denied open access to defendant's systems by plaintiff's expert because Fed. R. Civ. P. 34(a) did not give a requesting party the right to search the responding party's records.
KnifeSource, LLC v. Wachovia Bank, N.A., 2007 U.S. Dist. LEXIS 58829 (D. S.C. Aug. 10, 2007).
A bank was ordered to produce electronic copies of bank statements that it no longer kept in paper form. The bank's assertion that it should not be required to create new documents to comply with discovery requests was rejected because Fed. R. Civ. P. 26(b)(2)(B) excused discovery of electronic information only if it was not reasonably accessible.
A bank was ordered to produce electronic copies of bank statements that it no longer kept in paper form. The bank's assertion that it should not be required to create new documents to comply with discovery requests was rejected because Fed. R. Civ. P. 26(b)(2)(B) excused discovery of electronic information only if it was not reasonably accessible.
National Union Fire Ins. Co. v. Clearwater Ins. Co., 2007 U.S. Dist. LEXIS 52770 (S.D.N.Y. Jul. 21, 2007).
The cost of up to $80,000 to restore back-up tapes to find email relating to a reinsurance settlement outweighed likely benefits of the discovery because the tapes were for time periods from 7 to 22 months after the settlement. The electronically stored information thus was not reasonably accessible within the meaning of Fed. R. Civ. P. 26(b)(2), and plaintiff did not have to restore the back-up tapes.
The cost of up to $80,000 to restore back-up tapes to find email relating to a reinsurance settlement outweighed likely benefits of the discovery because the tapes were for time periods from 7 to 22 months after the settlement. The electronically stored information thus was not reasonably accessible within the meaning of Fed. R. Civ. P. 26(b)(2), and plaintiff did not have to restore the back-up tapes.
Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc., "Heartland III", 2007 U.S. Dist. LEXIS 53217 (D. Kan. Jul. 20, 2007.
Doctors who founded a hospital were not required to search their personal email in responding to third party subpoenas from defendants in the hospital's action because such personal email was unlikely to contain documents responsive to the subpoenas and email of the doctors on their hospital's server had been produced.
Doctors who founded a hospital were not required to search their personal email in responding to third party subpoenas from defendants in the hospital's action because such personal email was unlikely to contain documents responsive to the subpoenas and email of the doctors on their hospital's server had been produced.
Pipefitters Local No. 636 Pension Fund v. Mercer Human Resource Consulting, Inc., 2007 U.S. Dist. LEXIS 52169 (E.D. Mich. Jul. 19, 2007).
The court reversed a magistrate's order that plaintiffs would bear the cost of restoring or locating defendant's electronic data because there was no record that the magistrate had determined pursuant to Fed. R. Civ. P. 26(b)(2)(B) that the data was not reasonably accessible by defendant because of undue burden or cost.
The court reversed a magistrate's order that plaintiffs would bear the cost of restoring or locating defendant's electronic data because there was no record that the magistrate had determined pursuant to Fed. R. Civ. P. 26(b)(2)(B) that the data was not reasonably accessible by defendant because of undue burden or cost.
Doe v. Norwalk Community College, 2007 U.S. Dist. LEXIS 51084 (D. Conn. Jul. 16, 2007).
A community college that failed to take affirmative steps to halt destruction of information once it was on notice of a potential sexual assault claim was not entitled to the Fed. R. Civ. P. 37(f) good faith exception to sanctions for routine destruction of data. The court held plaintiff was entitled to an adverse inference sanction regarding data that the college failed to preserve.
A community college that failed to take affirmative steps to halt destruction of information once it was on notice of a potential sexual assault claim was not entitled to the Fed. R. Civ. P. 37(f) good faith exception to sanctions for routine destruction of data. The court held plaintiff was entitled to an adverse inference sanction regarding data that the college failed to preserve.
Michigan First Credit Union v. Cumis Ins. Society Inc., 2007 U.S. Dist. LEXIS 49166 (E.D. Mich. Jul. 9, 2007).
Following the recent amendment of Fed. R. Civ. P. 34(a) designed to include electronically stored information, defendant was required to produce documents not produced in response to three earlier document requests that fell within a revised definition of "document" provided by plaintiff.
Following the recent amendment of Fed. R. Civ. P. 34(a) designed to include electronically stored information, defendant was required to produce documents not produced in response to three earlier document requests that fell within a revised definition of "document" provided by plaintiff.
Pinnacle Pizza Co. v. Little Caesar Enterprises, Inc., 2007 U.S. Dist. LEXIS 48845 (D.S.D. Jul. 3, 2007).
A recent amendment to Fed. R. Civ. P. 26(b)(5) to provide that inadvertent disclosure of privileged electronic evidence was not an automatic waiver of privilege was drafted broadly enough to cover all types of discovery, including depositions.
A recent amendment to Fed. R. Civ. P. 26(b)(5) to provide that inadvertent disclosure of privileged electronic evidence was not an automatic waiver of privilege was drafted broadly enough to cover all types of discovery, including depositions.
In re ATM Fee Antitrust Litig., "ATM Fee II", 2007 U.S. Dist. LEXIS 47943 (N.D. Cal. June 25, 2007).
A recent amendment to Fed. R. Civ. P. 34 requiring production of electronic documents in their ordinarily maintained form or in a reasonably usable form was held not applicable to a fourth request for production served after the amendment. The litigation was two years old, and document production already was covered by an agreement to produce electronic documents as TIFF files.
A recent amendment to Fed. R. Civ. P. 34 requiring production of electronic documents in their ordinarily maintained form or in a reasonably usable form was held not applicable to a fourth request for production served after the amendment. The litigation was two years old, and document production already was covered by an agreement to produce electronic documents as TIFF files.
Columbia Pictures Industries v. Bunnell, 2007 U.S. Dist. LEXIS 46364 (C.D. Cal. June 19, 2007).
Data temporarily stored in random access memory (RAM) on defendants' website was "electronically stored information" within the meaning of recently-amended Fed. R. Civ. P. 34(a), and defendants were ordered to begin preserving and producing the RAM data in response to plaintiffs' discovery requests. However, the court declined to sanction defendants for spoliation of evidence by not using a server logging function in the past to preserve the RAM data because there was no precedent for requiring retention of data in RAM and there had been no preservation request by plaintiffs specifically directed to RAM data.
Data temporarily stored in random access memory (RAM) on defendants' website was "electronically stored information" within the meaning of recently-amended Fed. R. Civ. P. 34(a), and defendants were ordered to begin preserving and producing the RAM data in response to plaintiffs' discovery requests. However, the court declined to sanction defendants for spoliation of evidence by not using a server logging function in the past to preserve the RAM data because there was no precedent for requiring retention of data in RAM and there had been no preservation request by plaintiffs specifically directed to RAM data.
3M Co. v. Kanbar, 2007 U.S. Dist. LEXIS 45232 (N.D. Cal. June 14, 2007).
The initial disclosure pursuant to Fed. R. Civ. P. 26(a)(1)(B) of documents that a party would rely on did not require specific descriptions of documents with Bates numbers. Also, while a party would not be ordered to provide an index of the paper documents it produced, it would be required to produce the electronic version of the documents in order to assist in the organization and itemization of the documents.
The initial disclosure pursuant to Fed. R. Civ. P. 26(a)(1)(B) of documents that a party would rely on did not require specific descriptions of documents with Bates numbers. Also, while a party would not be ordered to provide an index of the paper documents it produced, it would be required to produce the electronic version of the documents in order to assist in the organization and itemization of the documents.
Scotts Co. LLC v. Liberty Mutual Insurance Co., 2007 U.S. Dist. LEXIS 43005 (S.D. Ohio June 12, 2007).
Recent amendments to Fed. R. Civ. P. 34 did not entitle plaintiff to an order allowing its forensic expert to search defendant's computer systems and backup tapes without first establishing a qualifying reason for such intrusive access that was more than mere suspicion that defendant was withholding discoverable information.
Recent amendments to Fed. R. Civ. P. 34 did not entitle plaintiff to an order allowing its forensic expert to search defendant's computer systems and backup tapes without first establishing a qualifying reason for such intrusive access that was more than mere suspicion that defendant was withholding discoverable information.
United States v. Krause (In re Krause), 2007 Bankr. LEXIS 1937 (Bankr. D. Kan. June 4, 2007).
Continuing use of a computer security program that erased files was not within the "safe harbor" provision under recently-amended Fed. R. Civ. P.37(f) barring sanctions for loss of electronic evidence through routine computer operations, and a debtor was threatened with incarceration if he did not comply with the court's discovery order.
Continuing use of a computer security program that erased files was not within the "safe harbor" provision under recently-amended Fed. R. Civ. P.37(f) barring sanctions for loss of electronic evidence through routine computer operations, and a debtor was threatened with incarceration if he did not comply with the court's discovery order.
Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 2007 U.S. Dist. LEXIS 39605 (D.D.C. June 1, 2007).
After weighing Advisory Committee factors under Fed. R. Civ. P. 26(b)(2)(B ), the court ordered restoration and searches of defendant's backup tapes because defendant had failed to put a litigation hold on a program that automatically purged email every sixty days during the three years after the complaint in the action was filed. The court directed the parties to prepare a stipulated protocol for a search of backup tapes with attention to "concept searching" rather than less efficient "keyword searching."
After weighing Advisory Committee factors under Fed. R. Civ. P. 26(b)(2)(B ), the court ordered restoration and searches of defendant's backup tapes because defendant had failed to put a litigation hold on a program that automatically purged email every sixty days during the three years after the complaint in the action was filed. The court directed the parties to prepare a stipulated protocol for a search of backup tapes with attention to "concept searching" rather than less efficient "keyword searching."
Guy Chemical Company, Inc. v. Romaco AG, 2007 U.S. Dist. LEXIS 37636 (N.D. Ind. May 22, 2007).
A court resolving who should pay for discovery requested from a non-party found it unnecessary to consider Zubulake cost-sharing factors because Fed. R. Civ. P. 45(d) allowed the court to specify conditions for such electronic discovery. Defendant was ordered to pay for the discovery because it would be fundamentally unfair for the non-party to bear the estimated cost of $7,000.
A court resolving who should pay for discovery requested from a non-party found it unnecessary to consider Zubulake cost-sharing factors because Fed. R. Civ. P. 45(d) allowed the court to specify conditions for such electronic discovery. Defendant was ordered to pay for the discovery because it would be fundamentally unfair for the non-party to bear the estimated cost of $7,000.
Calyon v. Mizuho Secs. USA Inc., 2007 U.S. Dist. LEXIS 36961 (S.D.N.Y. May 18, 2007).
After a review of decisions considering recently-amended Fed. R. Civ. P. 34(a), the court held that a plaintiff's general assertion that its computer forensics expert was more motivated than defendants' expert did not entitle plaintiff to carte blanche access to mirror images of hard drives on defendants' personal computers.
After a review of decisions considering recently-amended Fed. R. Civ. P. 34(a), the court held that a plaintiff's general assertion that its computer forensics expert was more motivated than defendants' expert did not entitle plaintiff to carte blanche access to mirror images of hard drives on defendants' personal computers.
Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 2007 U.S. Dist. LEXIS 36308 (N.D. Okla. May 17, 2007).
Parties in a federal action in Oklahoma were directed to follow Guidelines for the Discovery of Electronic Stored Information for the District of Kansas pending adoption of local rules or guidelines in the District of Oklahoma for electronic discovery.
Parties in a federal action in Oklahoma were directed to follow Guidelines for the Discovery of Electronic Stored Information for the District of Kansas pending adoption of local rules or guidelines in the District of Oklahoma for electronic discovery.
Rebman v. Follet Higher Education Group, Inc., 2007 U.S. Dist. LEXIS 32601 (M.D. Fla. May 3, 2007).
A motion to compel a further response to a discovery request that would require defendant to create a special software program to search over 200 million sales transactions was denied due to burdensomeness of the request. However, the court referred to Fed. R. Civ. P. 26(f) and ordered the parties to confer over a more narrow request and to discuss costs of production.
A motion to compel a further response to a discovery request that would require defendant to create a special software program to search over 200 million sales transactions was denied due to burdensomeness of the request. However, the court referred to Fed. R. Civ. P. 26(f) and ordered the parties to confer over a more narrow request and to discuss costs of production.
O'Bar v. Lowe's Home Ctrs., Inc., 2007 U.S. Dist. LEXIS 32497 (W.D.N.C. May 2, 2007).
In anticipation of electronic discovery disputes between plaintiffs and defendant, a U.S. District Court in North Carolina ordered the parties to prepare a detailed pre-class certification discovery plan under Rule 26(f) while following a proposed electronic discovery protocol from the District of Maryland.
In anticipation of electronic discovery disputes between plaintiffs and defendant, a U.S. District Court in North Carolina ordered the parties to prepare a detailed pre-class certification discovery plan under Rule 26(f) while following a proposed electronic discovery protocol from the District of Maryland.
Equal Employment Opportunity Commission v. Boeing Co., 2007 U.S. Dist. LEXIS 29107 (D. Ariz. Apr. 18, 2007).
Plaintiff's motion to compel answers by defendant's designated witness to questions concerning defendant's estimated cost of $55,000 for retrieving email was denied because the issue should have been raised before the court had decided plaintiff had not shown good cause to justify the expense of the discovery.
Plaintiff's motion to compel answers by defendant's designated witness to questions concerning defendant's estimated cost of $55,000 for retrieving email was denied because the issue should have been raised before the court had decided plaintiff had not shown good cause to justify the expense of the discovery.
In re Veeco Instruments, Inc. Securities Litigation, 2007 U.S. Dist. LEXIS 23926 (S.D.N.Y. Apr. 2, 2007).
Data on backup tapes was not reasonably accessible, and plaintiffs, under recently amended Fed. R. Civ. P. 26(b)(2), were thus obligated to show good cause for discovery of the data. After evaluating the seven factors in the Advisory Committee Notes to the 2006 amendment to Rule 26, the court held good cause had been shown and ordered defendants to restore the backup tapes. The court held it would conduct a Zubulake cost-shifting analysis only after defendant restored backup tapes and reported the results, time, and expense of the restoration to the court.
Data on backup tapes was not reasonably accessible, and plaintiffs, under recently amended Fed. R. Civ. P. 26(b)(2), were thus obligated to show good cause for discovery of the data. After evaluating the seven factors in the Advisory Committee Notes to the 2006 amendment to Rule 26, the court held good cause had been shown and ordered defendants to restore the backup tapes. The court held it would conduct a Zubulake cost-shifting analysis only after defendant restored backup tapes and reported the results, time, and expense of the restoration to the court.
Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 (D. Colo. Mar. 2, 2007).
A demand letter from plaintiff's counsel that invited negotiations to resolve a trademark dispute was not explicit enough to trigger defendant's obligation to preserve evidence. However, following the filing of the complaint, defendant's routine procedure for wiping computer hard drives could not be permitted to result in making data no longer reasonably accessible and required to be provided within the meaning of Fed. R. Civ. P. 26(b)(2)(B).
A demand letter from plaintiff's counsel that invited negotiations to resolve a trademark dispute was not explicit enough to trigger defendant's obligation to preserve evidence. However, following the filing of the complaint, defendant's routine procedure for wiping computer hard drives could not be permitted to result in making data no longer reasonably accessible and required to be provided within the meaning of Fed. R. Civ. P. 26(b)(2)(B).
AAB Joint Venture v. United States, 2007 U.S. Claims LEXIS 56 (U.S. Ct. Claims Feb. 28, 2007).
The government's duty to produce documents was not lessened by its decision to place evidence on backup tapes and thereby raise the cost of production. Whether using the marginal utility test or the Zubulake seven-factor analysis, the court in assessing cost-shifting pursuant to U.S. Ct. Fed. Cl. R. 26(b)(2)(iii) had to balance relevance of potentially restored documents against the burden of restoring the documents from a backup system.
The government's duty to produce documents was not lessened by its decision to place evidence on backup tapes and thereby raise the cost of production. Whether using the marginal utility test or the Zubulake seven-factor analysis, the court in assessing cost-shifting pursuant to U.S. Ct. Fed. Cl. R. 26(b)(2)(iii) had to balance relevance of potentially restored documents against the burden of restoring the documents from a backup system.
Peskoff v. Faber, "Peskoff II", 2007 U.S. Dist. LEXIS 11623 (D.D.C. Feb. 21, 2007).
Unless the producing party shows that data is "inaccessible" under recently amended Fed. R. Civ. P. 26(b)(2)(B), shifting costs of production to the requesting party did not become even a possibility.
Unless the producing party shows that data is "inaccessible" under recently amended Fed. R. Civ. P. 26(b)(2)(B), shifting costs of production to the requesting party did not become even a possibility.
Ameriwood Industries, Inc. v. Liberman, "Ameriwood II", 2007 U.S. Dist. LEXIS 10791 (E.D. Mo. Feb. 12, 2007).
Under recently amended Rule 26(b)(2)(B), the court held that information sought in a request for production of documents was not reasonably accessible because the request was unduly burdensome. The court denied defendants' motion to compel production because they failed to show good cause for production through narrow tailoring of their request.
Under recently amended Rule 26(b)(2)(B), the court held that information sought in a request for production of documents was not reasonably accessible because the request was unduly burdensome. The court denied defendants' motion to compel production because they failed to show good cause for production through narrow tailoring of their request.
Thielen v. Buongiorno USA, Inc., 2007 U.S. Dist. LEXIS 8998 (W.D. Mich. Feb. 8, 2007).
Although plaintiff failed to meet the deadline for responding to defendant's request for a mirror image of plaintiff's computer hard drive, the court held pursuant to Fed. R. Civ. P. 26(b)(2)(B) that a party did not have to produce electronic information that was not reasonably accessible and thus an undue burden to produce. Because the unrestricted access provided by a mirror image would be an undue burden, the court allowed only a forensic examination of the computer by an expert limited to the principal issue of the case and done outside the presence of the parties and their attorneys.
Although plaintiff failed to meet the deadline for responding to defendant's request for a mirror image of plaintiff's computer hard drive, the court held pursuant to Fed. R. Civ. P. 26(b)(2)(B) that a party did not have to produce electronic information that was not reasonably accessible and thus an undue burden to produce. Because the unrestricted access provided by a mirror image would be an undue burden, the court allowed only a forensic examination of the computer by an expert limited to the principal issue of the case and done outside the presence of the parties and their attorneys.
W.E. Aubuchon Co. v. Benefirst, LLC, 2007 U.S. Dist. LEXIS 44574 (D. Mass. Feb. 6, 2007).
Plaintiffs showed good cause for production of "inaccessible" documents under recently amended Rule 26(b)(2)(C) by specifically requesting information needed to prove liability and damages, and defendant was ordered to produce scanned files on a server at an estimated cost of $80,000.
Plaintiffs showed good cause for production of "inaccessible" documents under recently amended Rule 26(b)(2)(C) by specifically requesting information needed to prove liability and damages, and defendant was ordered to produce scanned files on a server at an estimated cost of $80,000.
Best Buy Stores, L.P. v. Developers Diversified Realty Corporation, 2007 U.S. Dist. LEXIS 7580 (D. Minn. Feb. 1, 2007).
A magistrate's order granting plaintiff's motion to compel production of documents within a month of the order was affirmed despite defendants' objection over two weeks after the order that technological restraints made compliance with the deadline impossible. The magistrate found that defendants offered no proof beyond conclusory statements about costs to retrieve documents from electronic archives and thus had not met their burden under recently-amended Fed. R. Civ. P. 26(b)(2)(B) to show that electronic information was not reasonably available.
A magistrate's order granting plaintiff's motion to compel production of documents within a month of the order was affirmed despite defendants' objection over two weeks after the order that technological restraints made compliance with the deadline impossible. The magistrate found that defendants offered no proof beyond conclusory statements about costs to retrieve documents from electronic archives and thus had not met their burden under recently-amended Fed. R. Civ. P. 26(b)(2)(B) to show that electronic information was not reasonably available.
Cenveo Corp. v. Slater, 2007 U.S. Dist. LEXIS 8281 (E.D. Pa. Jan. 31, 2007).
Despite defendants' desire to control imaging and examination of its own computer hard drives, plaintiff was granted permission to appoint an expert to image and examine the hard drives because the litigation concerned alleged improper use by defendants of plaintiff's confidential information and computers. Pursuant to Fed. R. Civ. P. 26(b)(2), the court weighed defendants' burden against plaintiff's interest in access to the information on the hard drives.
Despite defendants' desire to control imaging and examination of its own computer hard drives, plaintiff was granted permission to appoint an expert to image and examine the hard drives because the litigation concerned alleged improper use by defendants of plaintiff's confidential information and computers. Pursuant to Fed. R. Civ. P. 26(b)(2), the court weighed defendants' burden against plaintiff's interest in access to the information on the hard drives.
In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation, 2007 U.S. Dist. LEXIS 2650 (E.D.N.Y. Jan. 12, 2007).
Individual plaintiffs who declined to take part in a class in multidistrict litigation were required to include metadata with electronic documents only in future productions. Electronic data already produced without metadata did not have to be reproduced because recently amended Fed. R. Civ. P. 34 provided that a party could produce electronic data in "reasonably usable" form and defendants had not specified that their requests included metadata.
Individual plaintiffs who declined to take part in a class in multidistrict litigation were required to include metadata with electronic documents only in future productions. Electronic data already produced without metadata did not have to be reproduced because recently amended Fed. R. Civ. P. 34 provided that a party could produce electronic data in "reasonably usable" form and defendants had not specified that their requests included metadata.
DE Technologies, Inc. v. Dell, Inc., 2007 U.S. Dist. LEXIS 2769 (W.D. Va. Jan. 12, 2007).
A magistrate's discovery sanction providing that defendant could not use 57 pages of documents at trial was modified to allow use at trial. Production of the documents complied with amended Fed. R. Civ. P. 34(b) when produced in electronic format even though they were not produced with a live electronic directory and in the identical format in which they were kept in the ordinary course of business.
A magistrate's discovery sanction providing that defendant could not use 57 pages of documents at trial was modified to allow use at trial. Production of the documents complied with amended Fed. R. Civ. P. 34(b) when produced in electronic format even though they were not produced with a live electronic directory and in the identical format in which they were kept in the ordinary course of business.
Ameriwood Industries, Inc. v. Liberman, 2006 U.S. Dist. LEXIS 93380 (E.D. Mo. Dec. 27, 2006).
Production by a nonparty of an email document that defendants should have produced in their document production led the court to grant plaintiff's request for mirror images of hard drives of defendants' business and personal computers. In ordering production of the mirror images, the court considered the factors suggested by the Advisory Committee for a good cause inquiry under recently amended Fed. R. Civ. P. 26(b)(2) into whether production of information not reasonably accessible should be required.
Production by a nonparty of an email document that defendants should have produced in their document production led the court to grant plaintiff's request for mirror images of hard drives of defendants' business and personal computers. In ordering production of the mirror images, the court considered the factors suggested by the Advisory Committee for a good cause inquiry under recently amended Fed. R. Civ. P. 26(b)(2) into whether production of information not reasonably accessible should be required.
