Kroll Lists Top Discovery Cases

Tuesday, January 1, 2008 - 00:00

As the one year anniversary of the amended Federal Rules of Civil Procedure (FRCP) approaches, Kroll Ontrackhas announced a list of the year's top five most significant discovery cases. Focusing primarily on interpreting the new FRCP, common topics recurring in judicial opinions issued in 2007 included: the importance of early case conferences, the accessibility of electronically stored information, and what to do when parties fail to play by the new rules.

From Kroll's perspective, the top five most significant cases from 2007 that encapsulate these issues included:

• Court Orders Defendant to Preserve and Produce Server Log Data Stored in RAM; Columbia Pictures Industries v. Justin Bunnell, No. 06-1093 FMC (JCx) (C.D.Cal. May 29, 2007), aff'd. 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007). In a suit alleging copyright infringement, the plaintiff sought preservation and production of user IP addresses along with dates and times of user requests. The defendant argued that this data was temporarily stored in random access memory (RAM) and did not constitute electronically stored information (ESI.) The court held RAM data constituted ESI and was discoverable.

• Magistrate Finds E-mail Exhibits Inadmissible and Outlines Standards for Electronic Evidence Admissibility; Lorraine v. Markel Am. Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007). Plaintiffs brought suit to enforce an arbitrator's award. The judge dismissed both parties' dispositive motions without prejudice to allow resubmission with evidentiary support. The court held there is a five-point test in determining the admissibility of electronic evidence. ESI must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the "best evidence," and 5) not unduly prejudicial. The court stated, "it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try."

• Court Orders E-Mail Search and Production at Producing Party's Own Cost; Peskoff v. Faber, 2007 WL 530096, (D.D.C. Feb. 28, 2007). In a suit alleging fraud, breach of fiduciary duty, breach of contract, and conversion inter alia, the plaintiff argued that a previous electronic document production contained unexplained time gaps, suggesting problems with the original production. As a result, the plaintiff moved to compel discovery of additional e-mail. The court found in favor of the plaintiff, holding that accessible data must be produced at the cost of the producing party, unless the producing party can prove the documents are inaccessible.

• Court Considers Sanctioning Attorneys for Discovery Abuses; Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2900537 (S.D.Cal Sept. 28, 2007). During one of the last days of a patent infringement trial, cross-examination of the plaintiff's witness revealed the existence of relevant e-mails that the court later held were "the tip of the iceberg" in an attempt to conceal over 200,000 pages of relevant e-mails. The judge characterized the discovery abuses as, "an organized program of litigation misconduct" and ordered the plaintiff's attorneys to demonstrate why they should not be sanctioned, without use of documents protected by the attorney-client privilege.

• Court Denies Motion to Compel Deleted E-mail Stored on Backup Tapes; Oxford House, Inc. v. City of Topeka, 2007 WL 1246200 (D. Kan. Apr. 27, 2007). The plaintiff brought suit alleging that the defendant improperly denied several conditional housing permits. In responding to the plaintiff's motion to compel, the court determined there was no obligation to preserve overwritten e-mails before the likelihood of litigation. Moreover, the court used a cost-benefit balancing test to find that the production of the requested ESI would be unduly burdensome given the cost and likelihood of retrieval.