Post Process

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Archive for the ‘W.D. Wash.’ Category

Case Blurb: Younessi; Court Fashions Protective Order to Allow for Discovery but Protect Trade Secrets

Posted by rjbiii on July 3, 2008

The Court is convinced that this need is strong enough to warrant discovery from [Producing Party] and the Motion to Quash is DENIED. However, some form of protective order is appropriate and the Court now turns to what form that production should take.
In situations involving information which is appropriately kept private, the Court may fashion restrictions on the form and method of disclosure. See Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Cal.1999). In the interest of protecting private information such as trade secrets or privileged documents, the Court can order the responding party’s attorneys to search for all documents consistent with the subpoena and to produce only those which are relevant, responsive, and do not disclose trade secrets. See, e.g., id. The Court finds in Playboy an appropriate model for this case. There, the plaintiff sought to copy the defendant’s hard drives after it learned she may have deleted emails which could potentially prove the knowledge element of plaintiff’s infringement claims. Id. at 1051. Defendant responded with concerns that privileged communications would also be recoverable under such a procedure. Id. at 1054. The court ordered the copying, but directed defense counsel to search the copy for responsive materials instead of turning over the copied drives themselves. Id. at 1055

Here, [Requesting Party] also requests to copy [Producing Party’s] hard drives, a process which might reveal not just privileged, but also trade secret information. Having [Producing Party] search its own computers is an appropriate compromise here because of the unique status of [Requesting Party] as a direct competitor and of [Producing Party] as a nonparty [third party] to the underlying suit. The elaborate copying which took place in Playboy is not necessary because there are no allegations of documents being destroyed and [Producing Party] has shown that it is responsive and willing to cooperate with [Requesting Party’s] reasonable requests.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Data Collection, Data Sources, Duty to Produce, Form of Production, Hard Drive Inspections, Judge Ronald B. Leighton, Objections to Discovery Requests, Overly Broad Request, W.D. Wash. | Tagged: , | Leave a Comment »

Case Blurb: Younessi; Court Weighs Trade Secrets’ need for Secrecy vs. Discovery’s Need for Disclosure

Posted by rjbiii on July 3, 2008

[Producing Party] claims that production of its hard drives would necessarily reveal its trade secrets. Trade secrets have long been recognized as property. Because of their fleeting nature, once trade secrets are disclosed to outside parties they lose their value and the property right is extinguished. The Court recognizes [Producing Party’s] interest in keeping its trade secrets out of the public eye, and particularly away from its competitors.

[Requesting Party’s] request for [such records] are highly relevant. Even if [Producing Party] cannot reasonably produce the actual content of communications, [Requesting Party] could use records produced which indicate dates and times of communications for purposes of deposition and cross examination. Given the nature of [Requesting Party’s] allegations, it is reasonable to assume that none of the witnesses to such communications will be forthcoming in testifying without some of the information sought through discovery to direct their questioning. This meets the “good cause” standard.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 at *2 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Duty to Disclose, Duty to Produce, Good Cause, Judge Ronald B. Leighton, Objections to Discovery Requests, Trade Secrets, W.D. Wash. | Tagged: , | Leave a Comment »

Case Blurb: Younessi; Scope of Discovery, Bias Towards Disclosure

Posted by rjbiii on July 3, 2008

Discovery is generally available regarding any nonprivileged information relevant to any party’s claims or defenses. Fed.R.Civ.P. 26(b)(1). Discovery being broad in scope and biased toward disclosure, requests need only be “reasonably calculated to lead to the discovery of admissible evidence.” Id.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 at *2 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, FRCP 26(b), Judge Ronald B. Leighton, Scope of Discovery, W.D. Wash. | Tagged: , | Leave a Comment »

Case Blurb: Prof’l Basketball Club; Burden of proving objection to discovery requests falls to movant

Posted by rjbiii on March 11, 2008

In opposing discovery on the grounds of overbreadth, a party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents.” A “court must be able to ascertain what is being objected to. As such, unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” A claim that answering discovery will require the objecting party to expend considerable time and effort to obtain the requested information is an insufficient factual basis for sustaining an objection.

Here, [Producing Party] has not explained why producing the emails at issue would be unnecessarily burdensome, but merely states that producing such emails “would increase the email universe exponentially[.]” PBC also states in its moving papers that the emails add “nothing to the case except mountains of work for no return.” But a bald assertion that discovery will be burdensome is insufficient in light of Fed.R.Civ.P. 26(b)(2)(B). The Court is not permitted to presume the potential burdensome effects upon a party. The parties have already agreed upon a group of search terms that [Producing Party] previously used to search [key players’] emails and the Court assumes those terms may be used again to make further searches efficient.

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, Discovery Requests, Duty to Produce, FRCP 26(b), Judge Marsha Perchman, Objections to Discovery Requests, Overly Broad Request, Undue burden or cost, Vague Discovery Requests, W.D. Wash. | 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 »

Case Summary: Lakeside School; Court lays out procedure for examining employee’s hard drive

Posted by rjbiii on November 13, 2007

In this employee discrimination case, defendant Lakeside School sought a court order allowing inspection of a hard drive from a laptop belonging to the school, but which had been assigned for use to plaintiff for use in the discharge of his duties while employed at the school. The employee argued that some information on the laptop was covered by attorney-client and marital privilege.

The court ruled that in general, the employee had no expectation of privacy for communications made on the laptop belonging to his employer: he had signed a document indicating that he had read the school’s employee handbook containing a policy allowing the school to inspect any computer it furnishes its employees; any communications made using the e-mail accounts provided by the school similarly was bereft of any expectation of privacy. However, the court ruled that “web based” e-mails made on the computer, communicating with employee’s spouse or attorney, were covered by privilege.

I”m guessing here that the term “web based e-mails” means that the employee had an e-mail account, with an ISP that was not associated with the school (like Yahoo or Hotmail), and that he used his business laptop to access and use those accounts. These are what the court protected.

Another interesting facet of the decision is that, in the absence of an agreed protocol by the parties, the court dictated the procedure the parties would use for inspection of the hard drive. The court allowed the school’s suggested procedure:

Lakeside would be willing to have its own expert, at its own expense [ ], provide both parties’ counsel with a list of files (deleted and active) from Mr. Sims’ computer … Plaintiffs’ counsel can then identify any files they believe are privileged, as well as the nature of the privilege being asserted. Lakeside will then review any remaining files over which no claim of privilege is made, and will determine whether any of plaintiffs’ privilege designations should be challenged.

K&L Gates has their own summary here, and a copy of the opinion here (MS Word format).

Sims v. Lakeside School, 2007 WL 2745367 (W.D. Wash. Sept. 20, 2007)

Posted in 9th Circuit, Attorney Client Privilege, Case Summary, Computer Forensics, Privacy, W.D. Wash. | Tagged: , , , | 1 Comment »