Post Process

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Archive for the ‘FRCP 34(a)’ Category

Case Blurb: Mirbeau of Geneva Lake; Discoverability of ESI

Posted by rjbiii on December 29, 2009

The advisory notes to the Federal Rules of Civil Procedure indicate that the federal rules take an “expansive approach toward discovery of ESI and that “discovery of [ESI] stands on equal footing with discovery of paper documents.” ESI must be produced, “translated, if necessary by the respondent into a reasonably usable form.”

Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 U.S. Dist. LEXIS 101104, at *2-3 (E.D. Wis. Oct. 15, 2009)(internal citations removed).

Posted in 7th Circuit, Case Blurbs, E.D. Wis., Form of Production, FRCP 34(a), Judge J.P. Stadtmueller, Scope of Discovery | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Court discusses ‘legal control’ of evidence

Posted by rjbiii on September 15, 2008

[Requesting Party] additionally allege[s] that defendants failed to preserve or destroyed documents created in preparation for a book entitled Softwar: An Intimate Portrait of Larry Ellison and Oracle (“Softwar” ). The book was written by Matthew Symonds, an author and editor with The Economist, who conducted at least 135 hours of recorded interviews between March 2001 and August 2002 with defendant Ellison. In October 2006, plaintiffs moved to compel defendants to produce the transcripts and audio files of these Softwar interviews. Defendants argued that the materials were not in their custody or control, and Symonds also asserted that the materials were his sole property. On January 2, 2007, Special Master Infante determined that although such materials were in the physical possession of Symonds, Ellison had legal control of them pursuant to a contract between Symonds and Ellison. Winkler Decl. ex. 194. As a result, Special Master Infante ordered defendants to produce copies of “any interview notes, transcripts or tape recordings relating to the book.” Id. at 4. Shortly thereafter, it was revealed that Symonds no longer had the materials in question, and it appears that Symonds may have discarded the laptop computer containing the transcripts and audio files after he learned of plaintiffs’ motion to compel.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *2 (N.D.Cal. Sept. 2, 2008).

Posted in 9th Circuit, Case Blurbs, Data Sources, Duty to Preserve, Duty to Produce, FRCP 34(a), Judge Susan Illston, N.D. Cal., Possession or Custody or Control Of Evidence | Leave a Comment »

Case Blurb: Prof’l Basketball Club; Court discusses scope of duty to preserve

Posted by rjbiii on March 11, 2008

Fed.R.Civ.P. 34(a)(1)(A) allows a party to serve on any other party a request for relevant electronically stored information in the “responding party’s possession, custody, or control.”Only one of these requirements need be met. Legal ownership over the electronically stored information is not determinative, nor is possession necessary if the party has custody or control over the items. Further, “[c]ontrol is defined as the legal right to obtain documents upon demand.” Documents may be within the “custody” or “control” of a party even thought they are in the possession of nonparties. A legal right is evaluated in light of the facts of each case, but central to each case is the relationship between the person having actual possession of the document and the party or the transaction at issue. A legal right to obtain upon demand electronic information can also be established by the existence of a principal-agent relationship.

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)(emphasis added)(citations removed).

Posted in 9th Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Judge Marsha Perchman, Scope of Discovery, W.D. Wash. | Leave a Comment »

Hard drive inspection requests during discovery

Posted by rjbiii on November 13, 2007 brings us an article on the protocols adopted by courts with respect to inspecting a party’s hard drive during discovery. As frequent readers of this page know, document production is typically left up to each party in a dispute. Thus, allowing one party (or its forenisc expert) to inspect another’s computer represents a bit of a departure from traditional practice:

As a federal district court judge recently observed, a computer itself is not evidence in most cases, but merely the instrument for creating evidence (like a typewriter) or the means of storing it (like a file cabinet).

Accordingly, today’s litigants routinely seek access to opponent’s computer hard drive to search for discoverable evidence, especially when the opposing party may not be forthcoming about deleted or transferred files.

Hard drive inspections, therefore, are likely to occur when one party is seen to be less than forthcoming with its productions than their obligations require.

Generally speaking, courts allow imaging of an opponent’s computer hard drive in situations involving an adversary’s unsatisfactory document production or a finding that a hard drive search would yield deleted items. For example, in Playboy Enters. v. Welles, 60 F.Supp.2d at 1050, rev’d on other grounds, Playboy Enters. v. Welles, 279 F.3d 796 (9th Cir. 2002), a trademark infringement case, the plaintiff’s discovery request included permission to have access to the defendant’s hard drive for the purpose of recovering deleted e-mails that allegedly were systematically erased after litigation commenced and that may have been highly relevant. In granting the defendant’s request, the court found that the need for the requested information outweighed the burden to the defendant. Some courts will issue discovery orders for expedited discovery at the outset of litigation when the subject matter of the dispute involves trade secrets or other sensitive information that can be easily erased or destroyed.

The article notes that often third party vendors are used to accomplish the inspection to prevent the perception (real or imagined) of the presence of bias or abuse in the process. The article also mentions that even when allowing these inspections, protections courts often establish protections against undue burdens or disclosure of privileged or private data. Remember in our last post, the court in Lakeside School set up a screening process so that an employee’s privileged “web based” e-mails were not disclosed to the school, despite the fact that the school owned the hard drive at issue, and the employee had signed an agreement allowing the school to inspect the computer.

Posted in Articles, Computer Forensics, FRCP 34(a), Hard Drive Inspections, Privacy, Scope of Discovery | Tagged: , | Leave a Comment »

Case Blurb: Butler; Court discusses granting adversary access to producing party’s information systems

Posted by rjbiii on October 2, 2007

Plaintiff requests that this court order Kmart “to provide [p]laintiff and [p]laintiff’s expert open access to Kmart’s home office databases….” Fed. R. Civ. P. 34(a) does not generally give the requesting party right to search the responding party’s records. In re Ford Motor Co., 345 F.3d at 1317. *FN* In an instance where the responding party has acted improperly, the court may, in its discretion and to preserve discoverable information, respond accordingly. The plaintiff has produced no evidence demonstrating that Kmart has acted improperly. As such, this court will not provide the plaintiff with unfettered access to Kmart’s computer databases. Should additional intervention be required at a later time, the court will consider what measures should be undertaken concerning Kmart’s computer systems and the plaintiff’s access to them.

*FN* The court is aware that In re Ford Motor Co. was decided prior to the amendments to the FEDERAL RULES OF CIVIL PROCEDURE concerning electronically stored information. Those amendments however do not disturb the validity of the Eleventh Circuit’s holding here.

Butler v. Kmart Corp., 2007 WL 2406982 (N.D. Miss. Aug. 20, 2007).

Posted in 5th Circuit, Case Blurbs, Discovery, Duty to Conduct a Reasonable Inquiry, FRCP 34(a), Magistrate Judge S. Allan Alexander, N.D. Miss. | Tagged: , , , , , , | Leave a Comment »

Case Blurb: NTL Securities Litigation; FRCP 34(a) and possession of documents

Posted by rjbiii on August 28, 2007

Under Rule 34(a), parties may request from their adversaries documents (including ESI) “which are in the possession, custody or control of the party upon whom the request is served.”
The concept of ‘control’ has been construed broadly.
The test for the production of documents is control, not location. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; Scope of the Duty to Preserve

Posted by rjbiii on August 28, 2007

The duty to preserve extends “to any documents or tangible things (as defined by Rule 34(a) [including email] ) made by individuals ‘likely to have discoverable information that the disclosing party may use to support its claims or defenses.’ In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Key Players, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »