e-Lessons Learned

This case involves evidence spoliation where one party made an amazing gaffe during the information discovery part of litigation, often called “discovery.” Kucala Enterprises and its owner, John Kucala (collectively “Kucala”), filed a lawsuit against Auto Wax Company (“Auto Wax”) in 2001 to invalidate a patent owned by Auto Wax. Auto Wax countersued for patent infringement. After entry of a protective order, Auto Wax, through a court order, sought to inspect Kucala’s computer files for information relating to the manufacture of Kucala’s products. After delaying this inspection for over two months, Kucala allowed Auto Wax to inspect Kucala’s desktop computer on February 28, 2003.

However, on the eve of inspection, Kucala installed a computer program called “Evidence Eliminator” to Kucala’s desktop computer.

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Good planning makes for less litigation.

What happens when a company accused of patent infringement agrees to certain electronic discovery procedures and then fails to follow those procedures? The answer is very simple: the court turns into the Incredible Hulk! Court get angry! Court smash! Court bash!

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E-mail use is on the decline as businesses rely more on instant messaging (IM) for its realtime convenience and conferencing capabilities. State v. Voorheis shows us that the impact of IM on litigation will become more significant with its increased use.

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A bankruptcy judge in the Northern District of Ohio has forbidden a creditor from using information on its own electronic database to prove an administrative claim against a debtor’s estate because it refused to provide the debtor with access to the database throughout the discovery process

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This will teach you to keep your complaints to yourself, or at least to think outside the box a bit before you file a motion to compel production of an index.

Mylan Laboratories, a company which produced certain generic anti-anxiety medications, was charged with having entered into illegal agreements to monopolize the markets for those medications. Certain health insurers opted out of the settlement of that cause and separately sought to recover from Mylan.

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Protective orders, coupled with Fed. R. Evid. 502, can protect against not only inadvertent production, but also against a waiver of privilege regarding mistakenly disclosed documents.

In a previous post, I discussed protective orders, particularly how they could prevent the inadvertent production of documents during the discovery process. What I didn’t discuss was the defendant’s claim that the plaintiffs waived their right to assert privilege. In this argument, the defendant’s did not contest that the document was privileged. Rather, they argued that the plaintiffs waived their right to assert privilege “by allowing the privileged handwriting at the top of the document to be used without objection at two separate depositions.”

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In Equity Analytics v. Lundin, Magistrate Judge John M. Facciola, tackled the issue of how to let an employer search an ex-employee’s personal computer in a lawsuit over whether that employee illegally accessed the company’s ESI.

Equity discovered that its former employee, Timothy Lundin, had accessed the company’s Salesforce.com account after he was terminated. Lundin explained that another Equity employee had given him permission to use the employee’s username and password to access the Equity computer system. Lundin admitted that he had accessed the system some 18 times over a 90-day period, and had used his personal Macintosh computer to do it. Around the same time Equity discovered the unauthorized access, Lundin downloaded a new operating system onto his computer.

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Kentucky Speedway filed suit against the National Association of Stock Car Auto Racing (“NASCAR”) alleging that NASCAR had monopolized the markets for premier stock car racing and premier stock car racetracks. Speedway claimed that NASCAR “starved competing racetracks of revenue” so it could purchase the tracks at a reduced price. During the discovery phase, Speedway sought to obtain documents from NASCAR pertaining to, among other things, its “growth strategy, attempts to expand, and attempts to stifle competition by other major motorsports facilities.” A subsequent e-discovery dispute arose when Kentucky Speedway requested that NASCAR produce the metadata concerning the author and document creation information for all documents that were previously produced through discovery.

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One of the greatest opportunities in a journalist’s career is to be part of the White House Press Corps where select reporters cover White House press briefings and press releases. An even a greater honor is to be called on to ask the President of the United States a question during a press conference. And with the sustained popularity of this President thus far—early tracking numbers reveal that more people watched last night’s press conference than those who watched the recent season premiere of American Idol – the opportunities magnify beyond one’s wildest dreams.

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Plaintiffs sued Sprint claiming age was the main reason they were terminated from their jobs and requested spreadsheets from Sprint to support their case.

After several discovery conferences, Sprint had been informed that certain documents should be produced in the format in which they were maintained in the ordinary course of business, unless there is a specific agreement to do otherwise. Sprint indicated that there had been an agreement that the spreadsheets would be produced as TIFF images. The Court inquired as to why Sprint was unable to produce the spreadsheets in their original electronic format. In response, Sprint agreed to produce the electronic files, but expressed concern over sensitive information in the files, such as Social Security numbers. Sprint stated that they would redact sensitive or privileged information, indicate where information had been redacted, and produce the electronic files to Plaintiffs’ counsel.

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