In Bro-Tech Corp., et. al. v. Thermax, Inc., et. al., 2008 U.S. Dist. LEXIS 100749 (E.D. Penn. Dec. 11, 2008), the court denied as untimely plaintiffs' motion to waive the attorney-client privilege for a document "clawed back" pursuant to the parties' agreement.  In this theft of trade secrets case, litigation had been so contentious and the discovery process so lengthy that the court previously appointed a special electronic discovery master and both parties stipulated to an e-discovery protocol, including a clawback agreement.

In Gregg v. Local 305 IBEW et. al., 2008 U.S. Dist. Lexis 99075 (N.D. Ind. Dec. 8, 2008), the court denied the pro se plaintiff's motion for a preservation order under FRCP 26(f)(2) holding that plaintiff's concerns that defendants may destroy documents during their routine document-purging process were based on nothing more than speculation. The court, citing Treppel v. Biovail Corp., 244 F.R.D. 363, 370-371 (S.D.N.Y.) noted "preservation orders are burdensome and expensive and in absence of a clear need should not be lightly entered."

In Ajaxo, Inc., et. al. v. Bank of America Technology and Operations, Inc., et. al., 2008 U.S. Dist. LEXIS 97602 (E.D. Cal. Dec. 2, 2008), the court sanctioned plaintiffs for counsel's refusal to timely produce electronic documents in a searchable format pursuant to the court's prior order.

In Aguilar v. Immigration & Customs Enforcement Div. of the U.S. Dept. of Homeland Security, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008), the court granted plaintiffs' request for the production of certain metadata, notwithstanding the fact that defendants had already completed production and plaintiffs had not previously requested the metadata.  The court provides a comprehensive analysis of the history of FRCP 34, the case law in support of Rule 34 and relevant commentary by the Sedona Conference®.

In Rhoads Indus., Inc. v. Building Materials Corp. of Amer., 2008 U.S. Dist. LEXIS 96404 (E.D. Penn. Nov. 26, 2006)("Rhoads II"), U.S. District Court Judge Michael Baylson amended his earlier November 14, 2008 ruling (Rhoads Indus., Inc. v. Building Materials, Corp. of Amer., 2008 U.S. Dist. LEXIS 93333 (E.D. Penn. Nov. 14, 2008)("Rhoads I")) to clarify the affect that "email chains" and "email strings" have on the court's ordered production of documents that did not appear on plaintiff's privilege log.

In AIU Ins. Co. v. TIG Ins. Co., 2008 U.S. Dist. LEXIS 96693 (S.D.N.Y. Nov. 25, 2008), the court ordered defendant to conduct a search of its electronic files for five of seven requested document custodians, rejecting defendant's argument that the search would be unduly burdensome or superfluous given those individuals had little access to email during the relevant time frame. While the court agreed that defendant need not search the electronic files of individuals who could not be reasonably expected to possess responsive documents, the court ruled that it would not be unduly burdensome to search for electronic files of individuals who may possess relevant documents, but had little access to email.  The court noted, to the extent these individuals did not use email, the search may be fruitless but did not excuse defendant of its obligation under FRCP 26 to conduct a diligent search for potentially relevant documents.

In Alcon Manufacturing, Ltd. et. al. v. Apotex, Inc., et. al., 2008 U.S. Dist. LEXIS 96630 (S.D. Ind. Nov. 26, 2008), the court, relying on Federal Rule of Evidence 502(d) ordered the return or destruction of an inadvertently produced document that had been marked as an exhibit in two depositions before plaintiffs realized it was privileged and asked that it be returned or destroyed pursuant to a clawback agreement in the parties' protective order.

Tom Allman, The Sedona Conference® Working Group 1 Chair, recently updated his compendium of State E-Discovery Rulemaking.

In Pure Power Boot Camp v. Warrior Fitness Boot Camp, 2008 WL 4866165 (S.D.N.Y. Oct. 23, 2008), the court held that the plaintiff violated the Stored Communications Act and the defendant former employee's right of privacy when it accessed defendant's personal email accounts using a username and password inadvertently stored on plaintiff's computer.

In Integrated Service Solutions, Inc. v. Rodman, 2008 WL 4791654 (E.D. Pa. Nov. 3, 2008), the court denied plaintiff's motion for production of electronic documents deemed irrelevant by a subpoenaed non-party, even though plaintiff had retained and paid for a consultant to run keyword searches on the non-party's computers and check for evidence of spoliation.  The court did, however, rule that the plaintiff was entitled to a report documenting the consultant's efforts.