In chronological order, these ten cases contributed substantially to the development of e-discovery law in 2006.
1. Bergersen v. Shelter Mut. Ins. Co., 2006 WL 334675 (D. Kan. 2006) -- The court suggested that a responding party who chooses to produce requested documents "as they are kept in the usual course of business" under FRCP Rule 34(b)(i) "bears the burden of showing that the documents were in fact produced in that manner. A mere assertion that they were so produced is not sufficient to carry that burden. In addition, merely categorizing the documents produced does not, without some further explanation, satisfy the requirement that they be produced as kept in the usual course of business."
2. Static Control Components, Inc. v. Lexmark Int'l, Inc., 2006 WL 897218 (E.D. Ky. Apr. 5, 2006) -- A responding party must produce requested electronically stored information in a reasonably usable form and cannot "hide behind its peculiar computer system as an excuse for not producing this information."
3. O'Grady v. Superior Court (Apple, Inc.), 139 Cal.App.4th 1423 (Cal.App. May 26, 2006) -- A third party Internet news publisher is entitled to protection against subpoenas seeking unpublished information under California reporter's shield, and against discovery of confidential sources under the conditional constitutional privilege (see Mitchell v. Superior Court, 37 Cal.3d 268, 208 Cal. Rptr. 152, 690 P.2d 625 (1984)).
4. Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June 5, 2006) -- Where a responding party gathers together documents from different entities and locations and ditigally images them to CDs, it must prepare a table of contents or an index for those documents, notwithstanding they are imaged in a searchable format.
5. Advante Int'l Corp. v. Mintel Learning Tech, 2006 WL 1806151 (N.D. Cal. June 29, 2006) -- Where a party alleges another of discovery misconduct, the party "would not be given an unfettered right to conduct its own examination of the opposing party's computers. Rather, a protocol would have to be established to protect legitimate privacy, privilege, and safety concerns, and to minimize disruption."
6. National Econ. Research Assocs., Inc. v. Evans, 2006 WL 2440008 (Mass. Super. Ct. Aug. 3, 2006) -- The attorney-client privilege is not waived where an employee's communications with his attorney, which were unintentionally stored in a temporary file on a company-owned computer, were made through the employee's private, password-protected Yahoo e-mail account that he accessed through the Internet, not through his employer's Intranet. If an employer wishes to read such communications, it must clearly tell the employee that: (a) "[A]ll such e-mails are stored on the hard disk of the company's computer in a 'screen shot' temporary file" and (b) "[T]he company expressly reserves the right to retrieve those temporary files and read them."
7. United States v. Ziegler, 456 F.3d 1138 (9th Cir. 2006) -- An employee has no objectively reasonable expectation of privacy in his workplace computer where it is company-owned and the company's computer policy included routine monitoring, a right of access by the employer, and a prohibition against private use by its employees.
8. Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006) -- A responding party is entitled to shift part of the costs of restoring and searching emails that were converted into inaccessible format after the duty to preserve has arisen.
9. Crandall v. City & County of Denver, 2006 WL 2683754 (D.Colo. September 19, 2006) -- The court will not presume spoliation of electronic evidence. "Mere existence of a document (in this case e-mail) destruction policy within a corporate entity, coupled with a failure to put a comprehensive 'hold' on that policy once the corporate entity becomes aware litigation, does not suffice to justify a sanction absent some proof that, in fact, it is potentially relevant evidence that has been spoiled or destroyed."
10. Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. Sept. 21, 2006) -- Computer forensic examinations require a strong showing of discovery misconduct. "In the absence of a strong showing that the responding party has somehow defaulted in [its discovery obligation], the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance."
