Case Blurb: Parkdale; Court examines production of Lotus Notes documents for undue burden

According to the Plaintiffs’ briefs, the disputed emails are presently in LotusNotes format, rather than in a less accessible backup media. Although the Plaintiffs did not offer during the hearing a specific cost projection for converting and searching the subject emails, they contended in their briefs that the cost of producing Mr. Smeak’s emails was no more than $20,000, a fraction of the expense at issue in Zubulake, 217 F.R.D. at 316, where the cost of producing 5 sample disks alone was $19,000. Taking into account the factors listed in Fed. R. Civ. 26(b)(2)(C)(iii), including the amount in controversy ($3 million policy limit less $280,319.00 previously paid to reimburse Plaintiffs for a portion of their costs of defense), the parties’ apparent resources, and the importance of the proposed discovery in resolving critical factual issues, the Plaintiffs have not articulated a sufficient basis to relieve them of the obligation to produce these emails. Accordingly, the Plaintiffs’ objections to producing these documents, as expressed in their briefs and renewed in a modified fashion during the hearing, are overruled.

Parkdale America, LLC v. Travelers Cas. & Surety Co. of Am., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007)

Case Blurb: Parkdale; Potential waiver of privilege

[E]ven if relevant, [the party claims] that the requested information and documents are protected by attorney/client and/or attorney work product privilege. Counsel for the Plaintiffs conceded, however, that at least some responsive documents generated by the Plaintiffs in the ordinary course of business may have been taken by [attorneys] Reed Smith, LLP during the antitrust investigation and remain in their possession. Some of the otherwise arguably privileged information may have also been disclosed to third parties (e.g., opposing counsel and parties in the underlying antitrust actions), in a manner which would constitute waiver, thus rendering formerly protected material presently discoverable.

Parkdale America, LLC v. Travelers Cas. & Surety Co. of Am., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007).

Case Blurb: Lorraine; ESI may be authenticated by witness with personal knowledge of the data

Courts considering the admissibility of electronic evidence frequently have acknowledged that it may be authenticated by a witness with personal knowledge. Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

• (referencing United States v. Kassimu, 2006 WL 1880335 (5th Cir. May 12, 2006) (ruling that copies of a post office’s computer records could be authenticated by a custodian or other qualified witness with personal knowledge of the procedure that generated the records));
• (referencing St. Luke’s, 2006 WL 1320242 at *3-4 (”To authenticate printouts from a website, the party proffering the evidence must produce ’some statement or affidavit from someone with knowledge [of the website] … for example [a] web master or someone else with personal knowledge would be sufficient.’ ” (citation omitted)))
• (referencing Safavian, 435 F.Supp.2d at 40 n. 2 (D.D.C.2006) (noting that e-mail may be authenticated by a witness with knowledge that the exhibit is what it is claimed to be));
• (referencing Wady, 216 F. Supp 2d 1060 (sustaining objection to affidavit of plaintiff’s witness attempting to authenticate documents taken from the defendant’s website because the affiant lacked personal knowledge of who maintained the website or authored the documents)).