e-Discovery Docket Sheet

In a collection action by the plaintiff, the defendant sought sanctions for the plaintiff's failure to produce and preserve electronic evidence. The defendant argued that the plaintiff failed to produce adequate reasons for the non-production of electronic documents. The plaintiff failed to respond to the allegations of deliberate spoliation. The court ruled that sanctions and default were likely against the plaintiff because it failed to produce any adequate excuse about why electronic evidence wasn't produced or preserved, but the court ruled that it could not issue a default judgment because it was unclear who was at fault for the discovery mishaps. The plaintiff had used several different attorneys throughout the litigation and the plaintiff's counsel may have been to blame for the discovery insufficiencies. The court found that it could not ascertain whether the discovery misconduct was due to willfulness or bad faith on the part of the plaintiff, its counsel, or both, and so set a hearing at which the plaintiff would have an opportunity to show cause why it should not be sanctioned. Exact Software N. Am., Inc. v. Infocon, Inc., 2006 WL 3499992 (N.D. Ohio Dec. 5, 2006).

In a patent-infringement suit, the defendants brought a motion to compel the plaintiff to produce electronic documents. The defendants argued that they were entitled to search all documents created by every employee in the plaintiff's company. The plaintiff responded that it had produced all documents at issue and that a company-wide search would be costly and could not occur before the discovery deadline. The court found that the parties had not come to any agreement regarding the scope of electronic discovery according to the new guidelines set forth in the amended Federal Rules of Civil Procedure (FRCP). As a compromise, the court ordered the plaintiff to produce all electronic documents from 10 individuals of the defendant's choosing. Flexsys Americas, LP v. Kuhmo Tire U.S.A., Inc., 2006 WL 3526794 (N.D. Ohio Dec. 6, 2006).

In an age- and sex-discrimination dispute, the court entered a stipulated order regarding the discovery of electronically stored information. The order included a mandate that all electronic documents be produced in their native formats, unless otherwise agreed among the parties. The court also established a procedure for the parties to object to the production of any electronic documents, requiring the parties to state reasons why the documents are not accessible, why there would be an undue burden or cost, and whether there is any available information that they were willing to produce. Finally, the court ordered that the parties preserve all electronic evidence. Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006).

In an employment-termination case, the plaintiffs made a motion to the court for native-file production of e-mails that had been previously produced by the defendant in a hard-copy format. In the original production, spreadsheets had been detached from the e-mails and provided as separate documents in their native electronic format. The plaintiff claimed that without the native e-mail, the plaintiff was forced to match the hard-copy e-mails with the corresponding electronic spreadsheet attachment using a correlation table created by the defendant, which caused the plaintiff to incur more time and cost.