Post Process

Everything to do with E-discovery & ESI

Archive for December 5th, 2007

(Pre)serve and Protect [yourself]

Posted by rjbiii on December 5, 2007

Eric Sinrod, a partner at Duane Morris, has posted a story highlighting a case that we have featured in our case blurbs: APC Filtration, Inc. v. Becker. Entitled Dude, what happened to my PC?, Mr. Sinrod discusses describes the action:

The defendant founder of the competing company, within days of receiving the plaintiff’s complaint, disposed of his computer. He did so by taking the device 20 miles away to a construction site to get rid of it in a dumpster.

Doesn’t look good, does it? The defendant founder argued that his conduct was proper because he had been told that his computer had crashed and that it was beyond repair.

The judge did not buy this excuse and found that the founder’s conduct was in bad faith. The judge also determined that this conduct violated a court order that required production of all records of communications with the plaintiff’s former supplier and prospective customer–records that may have been contained on the disposed and destroyed computer.

He then uses this story to discuss the general issues associated with preserving data and penalties associated with failing to adequately do so.

Posted in Articles, Duty to Preserve | Tagged: , , , | Leave a Comment »

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

Posted by rjbiii on December 5, 2007

[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)

Posted in 7th Circuit, Case Blurbs, Duty to Produce, FRCP 26, M.D. Fla., Magistrate Judge Elizabeth A. Jenkins, Objections to Discovery Requests, Relevance | Leave a Comment »