e-Discovery and Computer Forensics Docket Sheet

In a copyright-infringement and trade-secret misappropriation lawsuit, the defendant objected to a magistrate judge's order compelling disclosure of attorney-client privileged e-mails and phone messages. The judge determined that it was necessary to disclose the communications because the defense counsel communicated with a clean-room team that was attempting to rewrite its source code from scratch while closing the room to improper outside communications. The defendant, who intended to use the clean-room exercise to prove that it had not copied the plaintiff's proprietary source code, objected to the ruling. The court overruled the defendant's objections, stating that “[w]hen the defendants chose to use the clean room exercise as a defense, they implicitly represented that the clean room's walls were effective.” Defense counsel, who had access to the source code, should not have communicated with the clean-room team, the court determined. As such, the court said the defendant could not prevent the plaintiff from reviewing the attorney-client privileged communications if it wanted to claim that the clean-room process was secure. Computer Assocs. Int'l v. Quest Software, Inc., 2004 WL 1459495 (N.D. Ill. June 28, 2004).

In a commercial rent-collection dispute, the debtor produced an e-mail from its attorney regarding proposed amendments to the lease contract. The debtor's counsel also indicated that it had other related e-mails but that they were subject to the attorney-client privilege. In response, the creditor argued that the debtor should be compelled to produce the e-mails because the privilege had been waived when the debtor produced the original e-mail from its attorney. Determining that the privilege had not been waived, the court declared there was “no evidence that the document was created in the course of rendering legal advice … [a]t best, the Disclosed E-mail is educational in nature.” The court also stated that even if the disclosed e-mail had been privileged, the privilege would not necessarily be waived for subsequent e-mails. In re Spring Ford Indus., Inc., 2004 WL 1291223 (Bankr. E.D. Pa. May 20, 2004).

In a case involving unfair-competition allegations, the plaintiff claimed that the defendant failed to adequately respond to its document-production requests. After the defendant failed to adequately respond for nearly a year, the trial court issued a production order and imposed monetary sanctions on the defendant. The defendant then filed a motion for clarification of the production order. In response, the trial court upheld the sanction award but, among other things, modified its original order to require the defendant to report the authority and expertise of the person searching any electronic data. The court also ordered the defendant to ensure that the person could access all relevant data and that the defendant had made an effort to recover any relevant deleted data. On appeal, the defendant argued that its actions were substantially justified because it opposed the plaintiff's motion to compel. In affirming the trial court's imposition of sanctions, the appellate court stated that even if the defendant's “objections to disclosure of … some of the evidence may have been valid [that] does not make its refusal to disclose other discoverable evidence substantially justified.” Feather River Anesthesia Med. Group, Inc. v. Fremont-Rideout Health Group, 2004 WL 1468741 (Cal. Ct. App. June 30, 2004).

Pursuant to a federal statute allowing recovery for costs incurred for “exemplification and copies of papers” used in a case, the defendant sought to recover costs from the plaintiff including, among other things, $6,325 for “database services.” The database services included the cost of hiring an expert to assemble, analyze and present electronic information for discovery. In denying the defendant's motion, the court determined that the costs were not recoverable because they were incurred to obtain the expert's intellectual work product rather than the physical preparation and duplication of the electronic documents. Lanphere Enterprises, Inc. v. Jiffy Lube Int'l, Inc., 2004 WL 1080169 (D.Or. May 12, 2004).