Lorraine v. Markel Am. Ins. Co., Case No. PWG-06-1893 (D. Md. May 4, 2007)
Chief U.S. Magistrate Judge Paul W. Grimm of the district court in Maryland recently shed light on the admissibility of electronically stored information (ESI), an issue "[v]ery little has been written" about, even though a lot of money and manpower are used to get ESI.
For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). . . . Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. FED. R. CIV. P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.
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3Com Corp. v. D-Link Systems, Inc., Case No. 03-cv-02177 (N.D. Cal. Mar. 27, 2007)
In this patent infringement action, Plaintiff 3Com Corporation ("3Com") moved to compel production of documents and sanctions against Defendant-Intervenor Realtek Semiconductor Corporation ("Realtek").
Of particular interest is the discovery dispute over the source code of the Realteck products that allegedly infringed 3Com's patents. Realtek produced the current and several other versions of the source code and stated that "it has now produced all the versions it maintains." 3Com argued that it has "good reason to believe" otherwise. In fact, Realtek did not dispute 3Com's claim that although many versions of generation 3.xx were produced, versions of generations 4.xx, 5.xx, and 6.xx were not. Realtek simply stated "[t]here can be many explanations for skipping a number when mulitple versions of the code are created," and did not expound on those "explanations."
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Memry Corp. v. Kentucky Oil Tech., N.V., Case No. 04-03843 (N.D. Cal. Mar. 19, 2007) (Not for Citation)
Counterclaim-Defendant Schlumberger Technology Corporation ("STC") moved to compel Defendant/Counterclaim-Plaintiff Kentucky Oil Technology ("KOT") to produce an intellectual property evaluation conducted for one of KOT’s predecessors-in-interest and original documents, including computer hard drives.
Of interest is the latter request in which STC sought KOT's computers and storage media for forensic inspection by a third party consultant pursuant to a protocol to be determined by the parties or the court. STC's bases for the request are KOT's "selective and incomplete document production" and failure to preserve hard drives. The court denied STC's request for three reasons.
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United States ex rel. Parikh v. Premera Blue Cross, Case No. 06-MC-00097 (S.D. Ohio Mar. 16, 2007)
PricewaterhouseCooopers ("PwC") is a non-party in this discovery dispute. Defendant Premera Blue Cross ("Premera") hired PwC to audit its receipt of Medicare payments. In November 2006, PwC was ordered by subpoena to produce all emails between it and Premera. PwC produced some but not all of the requested electronically stored information ("ESI"). So, qui tam Plaintiff filed a motion to compel.
Continue reading "Court Ordered Non-Party to Pay Cost of Retrieval of E-Mails and Plaintiff Reasonable Cost of Production" »