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.

Grange Mutual Cas. Co. v. Mack, 2008 WL 744723 (6^th Cir. Mar. 17, 2008) is one of those rare e-discovery cases that works to the U.S. Court of Appeals.  Unfortunately, the Sixth Circuit did not have too many kind words to say about Defendant Greg Mack's repeated discovery abuses.  "[Defendant's] willful bad faith in thwarting discovery is so obvious that he does not bother contesting the point." 

The defendant appealed a default judgment and award of damages entered in favor of plaintiffs, a group of insurance companies.  In issuing the default, the district court found that the defendant, while subject to a court order to preserve and produce electronic discovery, swapped out his office computers mid-litigation, refused to turn over other computers, and responded to discovery with frivolous objections.  In affirming the district court opinion, the Sixth Circuit noted "[i]t is in cases like this one, where the obstruction prevented the other party from accessing evidence needed to bring the case, that default is most likely to be the appropriate sanction."

 

In Shamrock Foods Co. v. Gast, (D. Ariz., No. CV-08-0219, Feb. 20, 2008), the court held that an employee's act of forwarding his company emails to his personal email account before resigning to work for a competitor was not an "unauthorized" use of the employer's computer for purposes of the Computer Fraud and Abuse Act.  The court held that since the employee was permitted to access the documents in the first place, his use of the computer was "authorized" regardless of his wrongful intent.

In the continuing saga over White House emails, U.S. Magistrate Judge John Facciola once again told the Bush Administration that he has no time for games.  On Tuesday, Judge Facciola gave the White House three days to give him a good reason why the Bush Administration should not be compelled to create and preserve a forensic copy of  all electronic storage devices that have been used or are being used by any former or current employee who has been employed at any time between March 2003 and October 2005.

In their lawsuits, the National Security Archive and Citizens for Responsibility and Ethics in Washington ("CREW") assert that the emails and electronic records may have been improperly deleted by the White House.  According to CREW, more than 5 million e-mails are missing and thought to have been destroyed.

 

According to law enforcement officials and published news reports, text messages between an alleged madam and prostitute may have a hand in bringing down "Client 9", an apparent reference to New York Governor Eliot Spitzer.  It appears that Client 9 went out of his way to avoid using electronic communications that could have easily been traced back to him.

Indeed, in a interview with ABC News two years ago, Spitzer, then-attorney general, told ABC News he had some advice for people who break the law. "Never talk when you can nod, and never nod when you can wink, and never write an e-mail because it's death. You're giving prosecutors all the evidence we need," he said.

Instead of a wire transfer, Client 9 allegedly sent thousands of dollars in cash through regular mail without a return address on the envelope.  The money was to cover the escort service and the prostitute's transportation from New York to Washington D.C.  In text messages exchanged between two defendants in the prostitution case, one wrote to the other:

"Pls let me know if [Client-9's] 'package' (believed to be a reference to a deposit of money sent by mail) arrives 2mrw. Appt wd b on Wed."

Text messages were also sent to solidify the planned meeting between Client 9 and the alleged prostitute "Kristen". 

"If D.C. appt. happens u will need 2 leave NYC @ 4:45pm. Is that possible?"

Kristen replied, "yes."

In addition to the text messages, authorities have audio recordings from phone wiretaps between Client 9 and members of the escort service.

Qualcomm, Inc. v. Broadcom Corp.

U.S. District Court, Southern District of California

Senior District Court Judge Rudi Brewster vacated the Magistrate Court's earlier order sanctioning six outside lawyers for Qualcomm, Inc.  In January, Magistrate Court Judge Barbara Major found that Qualcomm and its retained lawyers intentionally and deliberately withheld tens of thousands of decisive documents, including emails, from its opponent in an effort to win the case and gain a strategic business advantage.

In vacating the order and sending the sanctions issue back for further review, Judge Brewster ruled that Qualcomm's retained lawyers should have been able to defend their conduct and should not have been prevented in doing so by the attorney-client privilege.  The court found that the introduction of declarations by Qualcomm employees critical of Qualcomm's retained lawyers' services changed the factual basis underlying Judge Major's earlier denial of the self-defense exception to Qualcomm's attorney-client privilege.