In In re Krause, 2008 WL 1805508 (Bkrtcy.D.Kan. April 21, 2008), the bankruptcy court entered judgment in favor of the Government after finding that Gary Krause engaged in a "decades-long scheme" to keep all of his assets out of his own name while enjoying the benefits of those assets, including wiping computer hard drives. Early in the course of discovery, the Government served requests for production of documents on Krause seeking information residing on Krause's computers.  Krause failed to respond and the court issued an order compelling Krause to turnover the actual computers for inspection.  During the inspection, the Government learned that Krause had loaded and operated a wiping software program to permanently destroy or erase electronic information.  The court found that Krause willfully destroyed electronic evidence and assessed sanctions against him, including partial default judgment.  In addition, the judge threatened to hold Krause in contempt if he failed to produce other electronic information in his control.

In Mikron Indus., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008), the court rejected defendants' claims that searching through their electronically stored information (ESI) would be unduly burdensome and produce cumulative results.  Defendant filed a motion for protective order asking the court to shift the costs of defendants' remaining electronic discovery obligation to plaintiff.  The court denied the motion finding that defendants failed to meet and confer in good faith as required by FRCP 26(c).  The court, considering the matter on the merits, further found that defendants did not meet their burden of demonstrating that the requested information was unduly burdensome or cumulative under Rule 26(b)(2)(B).  "Defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as ‘inaccessible.'"  Nor did the defendants demonstrate any actual hardship beyond that which ordinarily accompanies the discovery process.

The court noted that defendants had not provided the court with details regarding: (1) the number of backup tapes to be searched; (2) the different methods defendants use to store information; (3) defendants' electronic document retention policies prior to retaining and outside consultant; (4) the extent to which the electronic information stored on backup tapes overlaps with ESI stored in more accessible formats; or (5) the extent to which the defendants have searched ESI that remains accessible.

The New Jersey Supreme Court held that a valid subpoena is required to seek disclosure of private subscriber information from an Internet Service Provider ("ISP").  In State of New Jersey v. Shirley Reid (A-105-06, April 21, 2008), defendant's employer used a sham subpoena to obtain information from Comcast. The resulting information confirmed the company's suspicion that the defendant had changed the username and password for the company's website.  The company turned the information over to police who arrested the defendant.  She was indicted and charged with second-degree computer theft.  In granting her motion to suppress the ISP information, the court ruled that a criminal grand jury subpoena was required because an indictable offense was at issue.  However, nothing bars the prosecutor from obtaining a grand jury subpoena and pursuing another indictment. To review the case, click here.

In State of Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008), the court dismissed as "not ripe for adjudication", plaintiff's request for a declaratory judgment that the defendant's letter seeking the preservation of documents relating to potential litigation violated the Federal Rules of Civil Procedure. 

Specifically, the State asked the court to determine "[w]hether it is a violation of Rule 26(f) and 34 to require an entity to broadly preserve and retain any and all electronic documents based on a [demand] made before suit is filed."  Although the Federal Rules do not specifically address a party's preservation obligation, the court noted that Rule 37 required the parties to act in good faith with respect to the preservation and production of documents.  The court declined to intervene in the prospective case or issue an advisory opinion as to what constitutes good faith.

According to CNN, the Federal Communications Commission is expected to announce a nationwide alert system that will use cell phones or other mobile devices to send text messages to Americans during a widespread disaster, severe weather, child abduction or other emergency.

Cell phone companies have indicated that they plan to sign up for the service. It appears that cell phone service subscribers will be automatically enrolled in the program, but may opt out.

There's an old saying that long case titles make good law.  Well, we can add to the list the case of Autotech Technologies Limited Partnership v. Automationdirect.com, 2008 WL 902957 (N.D. Ill. April. 2, 2008).

In response to defendant's document request, plaintiff produced, among other things, a hard copy and PDF copy of a document entitled "EZTouch File Structure."  Plaintiff unsuccessfully moved to compel a copy of the document in its native Microsoft® Word format with accompanying metadata.  The court, citing Rule 34 and The Sedona Principles, held that plaintiff was not entitled to any further production since its document demand failed to specify a form of production. "[Plaintiff] was the master of its production request; it must be satisfied with what it asked for."

In Alexander v. F.B.I, 2008 WL 903115 (D.D.C. April 3, 2008), district court held that neither the White House nor its counsel acted in bad faith or engaged in any obstruction of justice related to missing and deleted emails.  The court's ruling followed an evidentiary hearing to determine the veracity of statements regarding the storage and archival of emails in the White House's automated records management system.  It turned out that some emails were not archived due to a "coding error" by a private contractor.  The error was subsequently corrected, but the White House Counsel's office did not understand the extent of the problem.  The court held that the mistaken testimony was due to lack of familiarity with computer terminology and a failure to understand the White House's computer specialist.  The court found no evidence of any deliberate effort to conceal the truth from the plaintiffs or the court.

The White House email debacle continues in Alexander v. F.B.I., 2008 WL 879296 (D.D.C. March 31, 2008). In addition to denying plaintiffs' motions for orders to show cause regarding discovery disputes as to electronic information requested from the White House, the court also denied plaintiffs' motion to depose the former first lady Hilary Rodham Clinton.

 In U & I Corp. v. Advanced Medical Design, Inc., 2008 W.L. 821993 (M.D. Fl. March 26, 2008), plaintiff, a medical equipment company based in Korea, blamed its failure to preserve and produce documents on "confusion, software formatting, language barriers and understanding of the U.S. legal system."  The court was not moved and held that plaintiff failed to show a substantial justification for its failure and unwillingness to abide by court orders and the rules of discovery. "It is not the court's role, nor that of opposing counsel, to drag a party kicking and screaming through the discovery process."

The court ruled that Defendant is entitled to inspect hard drives used by certain of plaintiff's employees.  Plaintiff was also ordered t pay reasonable attorneys' fees and costs associated with the filing of the motion to compel.

 In Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. March 28, 2008), an employment discrimination action, the court ordered the parties to meet, confer and agree on a designated computer expert to create a "mirror image" of hard drives on plaintiff's home computers.  The defendant bears all costs associated with the expert.  The court's order includes a protocol to protect against disclosure of privileged information contained on plaintiff's hard drives.