Case Blurb: U & I; Court wants Producing Party to clearly demonstrate irrelevance

[Producing Party] U & I argues in its motion for protective order that requiring [third party] Zimmer Spine to comply with the subpoena would be unduly burdensome, basically because the parties have already exchanged over 6,000 pages during discovery. U & I does not specify how Zimmer Spine’s compliance with a subpoena that AMD propounded would impact or burden U & I. Instead, U & I submits that the requests are irrelevant because U & I preserved AMD’s contractual rights in its distribution agreement with Zimmer Spine.
[...]
As a party to the case, U & I has standing to move for a protective order under Rule 26, Fed.R.Civ.P., if the subpoena seeks irrelevant information. See Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231F.R.D. 426, 429-30 (M.D.Fla.2005). Nevertheless, the party seeking a protective order still has the burden to demonstrate good cause, and must make a “particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements” supporting its need for the protective order.

U & I has not demonstrated good cause for the protective order it seeks…

U & I Corp. v. Advanced Medical Design, Inc., 2007 WL 4181900 (M.D.Fla. Nov. 26, 2007) (internal citations removed, emphasis in the original)

Case Blurb: APC Filtration; Parties held culpable for violating court order before it was ever issued

Becker and SourceOne failed to comply with [the court's] order to produce documents because Becker had earlier discarded the computer. Becker and SourceOne’s own answers to APC’s interrogatories indicate that Becker communicated by email with Zehua but that “[t]he dates and times of these e-mail exchanges are unknown” because “Becker no longer is in possession of the e-mails.” (Defs.’ Answer to Pl.’s Interrog. No. 5.) Becker and SourceOne provided a similar answer with respect to Becker’s communications with AmSan. (Defs.’ Answer to Pl.’s Interrog. No. 15.) It is now clear that there must have been some communications between Becker, Zehua, and AmSan during Becker’s period of employment with APC because, as the parties agreed at oral argument, Becker and SourceOne had established contractual relationships with both of these companies prior to his termination in January 2007. Furthermore, the parties now agree that AmSan has responded to a subpoena by producing over 300 pages of e-mail correspondence, containing approximately 60 messages. Whether these represent the entirety of Becker’s communications in furtherance of his plan to compete with APC or merely the tip of the iceberg is impossible to tell, since the computer no longer exists. This is precisely the situation that the rules governing discovery are intended to prevent.

The Court specifically finds, in light of what Becker did (traveling 20 miles to dispose of the computer in a construction site Dumpster) and when he did it (within days of receiving notice of APC’s lawsuit), that Becker acted in bad faith in order to prevent APC from discovering potentially damaging evidence. See Langley, 107 F.3d at 514 (Rule 37 sanctions may only be imposed where a party displays willfulness, bad faith, or fault). Although this conduct occurred prior to the Court’s order, it is enough that Becker’s culpable conduct “eventually culminated in the violation.” Id. (quoting Marrocco v. Gen, Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992)). Therefore, because Becker acted in bad faith and violated a discovery order issued by this Court, Becker and SourceOne are subject to sanctions under Rule 37(b).

(emphasis added)

APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007)

Case Blurb: APC Filtration; Court explains why disposal of a computer containing discoverable information was improper

In order for [the] duty [to preserve the computer] to exist, the computer and its contents must have been discoverable under Rule 26 and [possessors of the computer] Becker and SourceOne must have had reasonable notice that the computer or its contents could be the subject of future discovery requests. In this case, both conditions are met.

Under the liberal standard of discovery relevance, material is discoverable if it is admissible or “reasonably calculated to lead to admissible evidence.” Fed. R. Civ. P. 26(b)(1). In this case, the allegations that support APC’s claims center on Becker’s conduct in communicating with various suppliers and customers within the vacuum filter and bag industry as well as his alleged misappropriation of proprietary information that was stored in computerized form. Becker stated in his affidavit that he used the computer for both business and personal reasons. Given the nature of the allegations and Becker’s use of the computer for business purposes, the contents of the computer were clearly discoverable.

Furthermore, Becker and SourceOne had reasonable notice that the computer could become the subject of discovery requests at the time that Becker threw the computer away. APC’s complaint was filed on March 15, 2007, and counsel for Defendants made his initial appearance on March 19, 2007. Becker admits to throwing the computer away sometime after March 21, 2007. As discussed above, notice of a complaint can put a litigant on notice that evidence is likely to be requested, triggering the duty to preserve. Cohn, 1995 WL 519968 at *5. In this case, Becker had notice based on the nature of APC’s allegations that the computer could become part of the discovery process. Because the computer’s contents were discoverable and Becker had reasonable notice that the computer could become the subject of a discovery request, Becker had a duty to preserve the computer as evidence prior to the date on which he discarded it. Therefore, this Court may impose sanctions pursuant to its inherent power.

APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D. Ill. Oct. 12, 2007)

Case Summary: School Dist. #70; Overly Broad Discovery Request

In a wrongful termination suit, Court disagreed with Plaintiff’s assertion that Defendant School District should have altered their document retention practices because they should have reasonably anticipated litigation in October 2004, because this was before plaintiff took FMLA leave and before the Board decided to replace plaintiff in March 2005. Furthermore, the Board could not have anticipated that all e-mails from that time on would be within the bounds of a discovery request for this particular matter. The court denied plaintiff’s request for production on this and other grounds.

Discovery Request seeking “[a]ll emails with attachments sent or received by anyone at the school since 1-1-97″ found overly broad, would clearly encompass e-mails not relevant to the litigation, and was not enforceable by the court. The court denied the Plaintiff’s request for production on this and other grounds.
Lewis v. School District #70, 2006 WL 2506465 (S. D. Ill).