e-Discovery Docket Sheet

In an employment discrimination lawsuit, the plaintiff appealed a district court's grant of summary judgment in favor of the defendant. The plaintiff argued that the District Court erred in involving the court's own computer personnel in discovery, and in finding that the defendant had fully produced all discoverable electronic data. During the discovery process, the plaintiff filed a motion to compel discovery on the grounds that the defendant deleted e-mails and destroyed documents. In response, the court ordered both parties to submit their copies of data to the court's information technology (IT) personnel to see whether the material could be retrieved. The court's personnel successfully retrieved the information, and the court closed discovery without requiring the defendant to take further action. The court also granted summary judgment, declaring that it had no reason to believe the defendant was concealing data or harassing the plaintiff during discovery. In affirming the district court's decision, the appellate court noted that the district court did not abuse its discretion in having the IT personnel evaluate the data, because the IT personnel acted as a neutral party on behalf of the court. Finding no reason existed to believe that the defendant was hiding information, the court also rejected the plaintiff's contention that all electronic documents found in discovery were not fully produced. Harbuck v. Teets, 2005 WL 2510229 (11th Cir. Oct. 12, 2005).

In a patent infringement suit, the plaintiffs renewed a motion to compel the defendants to provide them with access to a corporate intranet portal. The court had previously denied the motion, relying on the defendant's representation that it would produce the requested data in a searchable electronic format. In their renewed motion, the plaintiffs declared that the defendants did not follow through with this representation because they produced some of the documents in hard-copy format, requiring document-by-document review of over 1 million pages without the benefit of electronic searching. Additionally, the plaintiffs claimed that the defendants produced other large batches of documents in a non-searchable electronic format. The plaintiffs also alleged that certain documents had not been produced, constituting new evidence in support of the plaintiffs' motion. In response, the defendants declared that they had fulfilled their obligations under the Federal Rules of Civil Procedure by producing older documents, available only on microfilm, in the format in which they were maintained. The defendants also stated that they would produce the specific documents previously identified by the plaintiffs as non-searchable in “searchable form.” In denying the plaintiff's motion, the court found that the plaintiff had failed to demonstrate “an intervening change in controlling law, the availability of new evidence that was not available when the Court issued its first Order, or the need to correct a clear error of law or fact to prevent a manifest injustice.” Fenster Family Patent Holdings, Inc. v. Siemens Med. Solutions USA, Inc., 2005 WL 2304190 (D.Del. Sept. 20, 2005).

The plaintiff sought a computer backup tape containing data from two desktop computers and one laptop computer located in defendant Abernethy's home office. Abernethy was an employee of another named defendant, Sterling. The plaintiff alleged that the tape was necessary because relevant electronic evidence may have been altered or destroyed, and the tape “may contain the only remaining copy of that evidence.” The plaintiff stated that it needed the tape to compare the files on the backup tape to the original files on the computers. Objecting to the production, defendant Sterling argued that the tape was a backup of a Sterling computer, making it Sterling's property and not Abernethy's property. Sterling also argued that the plaintiff already had the documents on the tape, that the tape was not subject to a previously issued consent order, and that the files on the tape contained proprietary information that could not be produced. Rejecting these arguments, the court ordered production of the tape, concluding that the tape was Abernethy's property and not Sterling's property. The court also refused to accept Sterling's argument that the plaintiff had already obtained copies of the files through a forensics request and could request any deleted files it wished to have that existed on the tape. Commodity Futures Trading Com'n. v. Equity Fin. Group, LLC., 2005 WL 2205789 (D.N.J. Sept. 9, 2005).

Alleging that a teacher exchanged sexually explicit e-mails with students and made derogatory comments about school staff, a school board sought to compel production of all computers in the teacher's household. Additionally, the board sought to have its own computer expert search the computers in the expert's laboratory for the alleged messages between the teacher and students. Objecting to the order, the teacher declared that the production would violate his right against self-incrimination and his right of privacy, and would disclose privileged communications. An administrative law judge ordered production of the computers and sought to protect the teacher's right by allowing the teacher to have his own expert present at the inspection, and by requiring the school board's expert “not to retain, provide, or discuss with counsel for the Board the existence of any communications which might be deemed privileged.” In quashing the order, the court declared it was overbroad and would allow “an agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the computers [the teacher] has been ordered to produce, combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for 'any data' that may evidence communication between [the teacher] and his accusers.” Menke v. Broward County Sch. Bd., 2005 WL 2373923 (Fla. Ct. App. Sept. 28, 2005).

The plaintiff filed an employment-discrimination lawsuit alleging violations of the Americans with Disabilities Act and other state human rights laws. After the defendant filed a motion for summary judgment, the plaintiff requested a continuance to permit time for further electronic discovery before the court ruled on the summary judgment motion. The plaintiff claimed that the defendant failed to produce certain electronic entries made by the defendant's employees. The court granted the defendant's motion for summary judgment and declared that the plaintiff had failed to show that the defendant did not produce critical electronic entries. The defendant had also produced an e-mail ' which the plaintiff characterized as a “smoking gun” ' from one of its employees, and indicating that the company wanted to replace the plaintiff. Although recognizing the existence of the e-mail, the court declared, “Even if other emails exist in [the defendant's] computer archives, as [the plaintiff] alleges, he has not made the showing necessary to warrant their retrieval at this late date at [the defendant's] expense, nor has he volunteered to foot the bill for doing so.” Cook v. Deloitte & Touche, LLP, 2005 WL 2429422 (S.D.N.Y. Sept. 30, 2005).

e-Discovery Docket Sheet and Computer Forensics Docket Sheet were written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Charity Delich, a Kroll Ontrack law clerk. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics, and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at http://www.krollontrack.com/. Lange is a member of e-Discovery Law & Strategy's Board of Editors and can be reached at [email protected].