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e-Discovery Docket Sheet
App. Ct.: Requesting Party Pays For Backup
Tape Discovery If Reasonable, Necessary
Alleging misappropriation of trade secrets, breach of fiduciary duty and unfair competition claims, the plaintiff moved for production of relevant evidence contained on more than 800 backup tapes and asked that the defendant bear the costs of retrieving the data. The defendant objected, claiming undue burden and expense. The defendant also revealed that some of the tapes had become obsolete, making the data accessible only through the use of specialized tools. The plaintiff contended that it should not be penalized, because the defendant chose to keep records in a format difficult for retrieval. Without comment, explanation or suggestion of a sampling protocol, the trial court ordered the defendant to produce the backup tape data and to bear production costs. On appeal, the court declined to apply the Zubulake 7-factor cost-shifting test and instead referenced California Code of Civil Procedure '2031, stating that, “our Legislature has identified the expense of translating data compilations into usable form as one that, in the public's interest, should be placed upon the demanding party.” The appellate court required the plaintiff to pay for translating the backup-tape data. The court stated that the plaintiff could seek a protective order or file a motion to compel production if asked to pay costs that it finds unreasonable and unnecessary. The court indicated that sampling would be an appropriate test for determining necessity and remanded the case for a determination on whether the backup tapes were necessary and reasonable. Toshiba Am. Elec. Components, Inc. v. The Superior Court of Santa Clara County, 2004 WL 2757873 (Cal. App. Dec. 3, 2004).
Production Of Computer-Stored Data Not
Unduly Burdensome, Says LA Dist. Ct.
The plaintiff sought to compel discovery from the defendant, including information pertaining to when the defendant received a prescription for and distributed a certain drug. The defendant objected on the grounds that privacy laws protected the information and that the information would be too burdensome to collect. The court determined that the request would be unduly burdensome only if the defendant had to manually retrieve the data. In this case, the court found the data would be easily retrievable because it could be produced from a computer system. The court ordered the defendant to determine which information must be retrieved manually and which information could be produced from a computer system. After receiving this information from the defendant, the court ordered the defendant to produce all of the responsive data that could be produced without identifying patient-specific information. If the data had to be manually produced, the court ordered the parties to agree on a sampling process. Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2358106 (E.D.La. Oct. 13, 2004).
Court Prohibits Defendant's Use Of Plaintiff's
Proprietary Electronic Documents
Alleging the defendants violated a noncompete employment contract, the plaintiffs sought a preliminary injunction against the defendants. The court had previously issued a temporary restraining order prohibiting the defendants from using confidential information, deleting relevant e-mails or documents and accessing the plaintiffs' e-mail system. Among the items at issue were electronic marketing materials and a confidential client list. The defendant argued that the marketing materials ' including PowerPoint slides ' were not confidential because they were presented in public settings. While the court concluded that the PowerPoint presentations were not confidential, it nonetheless prohibited the defendants from having unrestricted access based on the plaintiffs' right to protect their proprietary data. The court ordered the defendants to refrain from using any PowerPoint slides produced or modified during the defendants' employment. Regarding the confidential client list, the court found that one of the defendants accessed the client list while simultaneously burning CDs and sending e-mails that may have contained confidential information. Based on these findings, the court ordered the defendants to refrain from deleting or modifying any documents, e-mails or computer drives that contained information about the plaintiff's business. The court further ordered the defendants to separate these materials from the rest of their files and to store them in a confidential file. Propath Services, LLP v. Ameripath, Inc., 2004 WL 2389214 (N.D.Tex. Oct. 21, 2004).
Violation Of Preservation
Order Brings Attorney Fees
The plaintiff sued the defendant, seeking to retrieve its proprietary materials and to recover damages for copyright and trademark infringement and misappropriation of trade secrets. The district court previously ordered the defendant to preserve relevant documents, software and equipment. During settlement negotiations, the defendant agreed to return a laptop ' including the data stored on it ' to the plaintiff. Minutes before the parties signed the agreement, the defendant violated the preservation order and deleted data from the laptop. At a subsequent evidentiary hearing, a magistrate judge recommended civil contempt sanctions against the defendant for “knowingly and in bad faith violat[ing] the original discovery preservation order and … deliberately deleting data from the laptop.” The district judge found the defendant in civil contempt and awarded $50,000 in costs and attorney fees against him. The appellate court, however, reluctantly found the defendant not liable for violating the settlement agreement because he deleted the data before signing the agreement. Nonetheless, the court held the defendant liable for violating the district court's preservation order and ordered the defendant to pay attorney fees attributed to the file deletion. Institute for Motivational Living v. Doulos Inst. for Strategic Consulting, Inc., 110 Fed. Appx. 283 (3d Cir. 2004).
Court Orders e-Mail Production And Awards
Sanctions For Dodging Discovery Obligations
In a class-action lawsuit, the plaintiffs brought a motion to compel document production and alleged that the defendant's “obfuscation, deliberate frustration of discovery, and 'hide the ball' tactics” warranted sanctions. The plaintiffs contended that the defendant waited until the “eleventh-hour” to produce documents, including a CD containing information that would have affected the plaintiffs' expert witness' analysis. The plaintiffs also argued that the defendant failed to disclose 400 to 500 e-mails that the defense expert witness had relied on in making his own findings. In response, the defendant claimed its expert did not rely on the e-mails and the plaintiffs failed to properly request the e-mails during discovery. The court declared that the plaintiffs should have received the database material contained on the CD much earlier ' when the plaintiffs originally requested the data. Although the court found both parties partly responsible for the discovery dispute, it declared the defendant “must pay the greater price as its tactics have led directly to this situation.” The court ordered the defendant to produce all of the requested e-mails and permitted the plaintiffs to review the e-mails and to re-depose the defense expert witness. The court also allowed the plaintiffs' expert to review the e-mails and the documents on the CD and to modify his report if necessary. Dziadkiewicz v. Blue Cross & Blue Shield of Rhode Island, 2004 WL 2418308 (D.R.I. Oct. 21, 2004).
Court Considers e-Document Privilege Claims & Orders
Review of Unredacted e-Mails
In a patent-infringement case, the plaintiff, inter alia, sought to compel production of electronic documents and e-mails. The defendant claimed the disputed documents fell within the attorney-client privilege because they were exchanged between the defendant's engineers and former defense counsel. In response, the plaintiff argued that the defendant had waived the privilege because it was asserting an advice-of-counsel defense to charges of willfulness and because it sent the documents to its current counsel. The defendant maintained that the attorney-client privilege still existed because its counsel never opened the e-mail attachments containing the privileged documents. Denying its motion to compel, the court found the plaintiff did not present sufficient evidence to refute the defendant's argument. The plaintiff also disputed 58 e-mails identified by the defendant as privileged. These e-mails were exchanged between nonattorney employees but contained a forwarded exchange with an attorney. Although the defendants had produced redacted copies of the e-mails, the plaintiffs argued the redactions were overbroad because they blocked out information about the author and the recipient of the e-mails. The court agreed, ordering the defendant to show the plaintiff unredacted copies of the e-mails to discuss the scope of privilege. This disclosure conference, the court added, would not waive any existing attorney-client privilege. Collaboration Properties, Inc. v. Polycom, Inc., 224 F.R.D. 473 (N.D. Cal. 2004).
Michele C.S. Lange Charity Delich www.krollontrack.com e-Discovery Law & Strategy [email protected]
App. Ct.: Requesting Party Pays For Backup
Tape Discovery If Reasonable, Necessary
Alleging misappropriation of trade secrets, breach of fiduciary duty and unfair competition claims, the plaintiff moved for production of relevant evidence contained on more than 800 backup tapes and asked that the defendant bear the costs of retrieving the data. The defendant objected, claiming undue burden and expense. The defendant also revealed that some of the tapes had become obsolete, making the data accessible only through the use of specialized tools. The plaintiff contended that it should not be penalized, because the defendant chose to keep records in a format difficult for retrieval. Without comment, explanation or suggestion of a sampling protocol, the trial court ordered the defendant to produce the backup tape data and to bear production costs. On appeal, the court declined to apply the Zubulake 7-factor cost-shifting test and instead referenced California Code of Civil Procedure '2031, stating that, “our Legislature has identified the expense of translating data compilations into usable form as one that, in the public's interest, should be placed upon the demanding party.” The appellate court required the plaintiff to pay for translating the backup-tape data. The court stated that the plaintiff could seek a protective order or file a motion to compel production if asked to pay costs that it finds unreasonable and unnecessary. The court indicated that sampling would be an appropriate test for determining necessity and remanded the case for a determination on whether the backup tapes were necessary and reasonable. Toshiba Am. Elec. Components, Inc. v. The Superior Court of Santa Clara County, 2004 WL 2757873 (Cal. App. Dec. 3, 2004).
Production Of Computer-Stored Data Not
Unduly Burdensome, Says LA Dist. Ct.
The plaintiff sought to compel discovery from the defendant, including information pertaining to when the defendant received a prescription for and distributed a certain drug. The defendant objected on the grounds that privacy laws protected the information and that the information would be too burdensome to collect. The court determined that the request would be unduly burdensome only if the defendant had to manually retrieve the data. In this case, the court found the data would be easily retrievable because it could be produced from a computer system. The court ordered the defendant to determine which information must be retrieved manually and which information could be produced from a computer system. After receiving this information from the defendant, the court ordered the defendant to produce all of the responsive data that could be produced without identifying patient-specific information. If the data had to be manually produced, the court ordered the parties to agree on a sampling process. Pamlab, L.L.C. v. Rite Aid Corp., 2004 WL 2358106 (E.D.La. Oct. 13, 2004).
Court Prohibits Defendant's Use Of Plaintiff's
Proprietary Electronic Documents
Alleging the defendants violated a noncompete employment contract, the plaintiffs sought a preliminary injunction against the defendants. The court had previously issued a temporary restraining order prohibiting the defendants from using confidential information, deleting relevant e-mails or documents and accessing the plaintiffs' e-mail system. Among the items at issue were electronic marketing materials and a confidential client list. The defendant argued that the marketing materials ' including PowerPoint slides ' were not confidential because they were presented in public settings. While the court concluded that the PowerPoint presentations were not confidential, it nonetheless prohibited the defendants from having unrestricted access based on the plaintiffs' right to protect their proprietary data. The court ordered the defendants to refrain from using any PowerPoint slides produced or modified during the defendants' employment. Regarding the confidential client list, the court found that one of the defendants accessed the client list while simultaneously burning CDs and sending e-mails that may have contained confidential information. Based on these findings, the court ordered the defendants to refrain from deleting or modifying any documents, e-mails or computer drives that contained information about the plaintiff's business. The court further ordered the defendants to separate these materials from the rest of their files and to store them in a confidential file. Propath Services, LLP v. Ameripath, Inc., 2004 WL 2389214 (N.D.Tex. Oct. 21, 2004).
Violation Of Preservation
Order Brings Attorney Fees
The plaintiff sued the defendant, seeking to retrieve its proprietary materials and to recover damages for copyright and trademark infringement and misappropriation of trade secrets. The district court previously ordered the defendant to preserve relevant documents, software and equipment. During settlement negotiations, the defendant agreed to return a laptop ' including the data stored on it ' to the plaintiff. Minutes before the parties signed the agreement, the defendant violated the preservation order and deleted data from the laptop. At a subsequent evidentiary hearing, a magistrate judge recommended civil contempt sanctions against the defendant for “knowingly and in bad faith violat[ing] the original discovery preservation order and … deliberately deleting data from the laptop.” The district judge found the defendant in civil contempt and awarded $50,000 in costs and attorney fees against him. The appellate court, however, reluctantly found the defendant not liable for violating the settlement agreement because he deleted the data before signing the agreement. Nonetheless, the court held the defendant liable for violating the district court's preservation order and ordered the defendant to pay attorney fees attributed to the file deletion.
Court Orders e-Mail Production And Awards
Sanctions For Dodging Discovery Obligations
In a class-action lawsuit, the plaintiffs brought a motion to compel document production and alleged that the defendant's “obfuscation, deliberate frustration of discovery, and 'hide the ball' tactics” warranted sanctions. The plaintiffs contended that the defendant waited until the “eleventh-hour” to produce documents, including a CD containing information that would have affected the plaintiffs' expert witness' analysis. The plaintiffs also argued that the defendant failed to disclose 400 to 500 e-mails that the defense expert witness had relied on in making his own findings. In response, the defendant claimed its expert did not rely on the e-mails and the plaintiffs failed to properly request the e-mails during discovery. The court declared that the plaintiffs should have received the database material contained on the CD much earlier ' when the plaintiffs originally requested the data. Although the court found both parties partly responsible for the discovery dispute, it declared the defendant “must pay the greater price as its tactics have led directly to this situation.” The court ordered the defendant to produce all of the requested e-mails and permitted the plaintiffs to review the e-mails and to re-depose the defense expert witness. The court also allowed the plaintiffs' expert to review the e-mails and the documents on the CD and to modify his report if necessary. Dziadkiewicz v. Blue Cross & Blue Shield of Rhode Island, 2004 WL 2418308 (D.R.I. Oct. 21, 2004).
Court Considers e-Document Privilege Claims & Orders
Review of Unredacted e-Mails
In a patent-infringement case, the plaintiff, inter alia, sought to compel production of electronic documents and e-mails. The defendant claimed the disputed documents fell within the attorney-client privilege because they were exchanged between the defendant's engineers and former defense counsel. In response, the plaintiff argued that the defendant had waived the privilege because it was asserting an advice-of-counsel defense to charges of willfulness and because it sent the documents to its current counsel. The defendant maintained that the attorney-client privilege still existed because its counsel never opened the e-mail attachments containing the privileged documents. Denying its motion to compel, the court found the plaintiff did not present sufficient evidence to refute the defendant's argument. The plaintiff also disputed 58 e-mails identified by the defendant as privileged. These e-mails were exchanged between nonattorney employees but contained a forwarded exchange with an attorney. Although the defendants had produced redacted copies of the e-mails, the plaintiffs argued the redactions were overbroad because they blocked out information about the author and the recipient of the e-mails. The court agreed, ordering the defendant to show the plaintiff unredacted copies of the e-mails to discuss the scope of privilege. This disclosure conference, the court added, would not waive any existing attorney-client privilege.
Michele C.S. Lange Charity Delich www.krollontrack.com e-Discovery Law & Strategy [email protected]
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