e-Discovery and Computer Forensics Docket Sheet

Summary Judgment Granted For Failure
To Conduct Computer Examination

In response to the plaintiff's claims of trademark infringement, breach of contract and misappropriation of trade secrets, the defendant moved for partial summary judgment, arguing that the plaintiff presented no evidence to support its claims. In support of its motion, the defendant submitted findings by a computer company, which inspected the defendant's computers and determined that no remnants of the plaintiff's confidential database existed on them. Arguing that the court should deny the summary-judgment motion, the plaintiff declared that the computer company had performed a minimal inspection and that a more complete computer-forensics investigation might have revealed evidence of the database. The court granted the defendant's summary-judgment motion, declaring that the plaintiff “has the burden of proof, and therefore the responsibility to conduct a thorough investigation. [The plaintiff] cannot simply sit back and complain about the inadequacy and/or bias of [the defendant's] inspection efforts.” Tempco Elec. Heater Corp. v. Temperature Eng'g Co., 2004 WL 1254134 (N.D.Ill. Jun. 3, 2004).

In a personal-injury lawsuit, the trial court granted the plaintiff's motion for an order compelling production of the defendant's computer database. Specifically, the trial court ordered the defendant to bring or have access to a computer at the defendant's deposition that could search, sort and print any database information that the plaintiff's counsel might request. The defendant objected to the order, claiming that the request was overbroad and argued that producing the entire database electronically would give the plaintiff unfettered access to privileged or irrelevant information. Ruling in favor of the defendant, the appellate court declared that “requests for information that are not reasonably tailored as to time, place, or subject matter amount to impermissible 'fishing expeditions'.” Finding the discovery order overbroad, the appellate court issued a writ of mandamus, vacating the portion of the order that required production of the database. In re Lowe's Cos., Inc., 2004 WL 1092374 (Tex. App. May 18, 2004).

In a suit involving the criminal investigation of state legislators and caucuses, the trial court issued a subpoena ordering the Legislative Technology Service Bureau (LTSB) to produce back-up tapes for 54 government servers or, as an alternative, to produce extracted documents for certain individuals. The trial court defined documents to include electronic files, e-mails, recycle bins, temporary Internet files and image files. On appeal, the LTSB objected to the subpoena, asserting, among other things, that the trial judge abused his discretion by issuing an overly broad and unreasonable order. The Wisconsin Supreme Court determined that the subpoena was overbroad because it compelled production of computer data from an entire branch of government rather than requesting specific topics, document types or time periods. In quashing the subpoena, the court stated that “[b]ecause the records sought are computer records, a key word search would not have been too difficult to incorporate in the subpoena.” In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004).