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GTFM,
Inc. v. Wal-Mart Stores, Inc., 2000 U.S. Dist. LEXIS 16244, 2000 WL 335558 (S.D.N.Y.).
GTFM sought
transactional documents from Wal-Mart in this trademark
infringement case. Wal-Mart's counsel responded
that it did not have the centralized computer capabilities
to track the purchase and sale of goods for a particular
period of time. Plaintiffs then attempted
to discover the information through other sources. Approximately one year later, GTFM deposed
a Wal-Mart vice president who revealed that Wal-Mart's
computers did in fact have the capability to track
the purchase and sale of goods. The court
held that counsel for Wal-Mart had a duty to find
the person within the organization who had knowledge
of the computer capabilities and held that Wal-Mart
had misrepresented its computer capacity. The court ordered defendant to pay all of plaintiffs'
attorneys' fees and costs unnecessarily expended
due to the failure to disclose accurate information.
Linnen
v. A.H. Robins Co., 1999
WL 462015 (Mass. Super. Ct. 1999).
Linnen is one of the first pharmaceutical products liability
cases. In Linnen,
the plaintiffs went to the court ex parte and
acquired a document preservation order. After
it was served on the defendants, the defendants
waited for some period of time prior to stopping
the recycling of their backup tapes. During discovery,
defendants balked at the request to restore many
of the backup tapes to search for responsive information.
The court ordered the defendants to restore
the backup tapes and search. Further, it
ordered that a "spoliation inference"
would be given, that is, that the jury be instructed
that an adverse inference may be drawn from the
fact the documents were destroyed by the defendants.
Playboy
Enter. v. Welles, 60
F. Supp. 2d 1050 (S.D. Cal. 1999).
The court
first noted that by requesting "documents"
under the Rules of Civil Procedure the requestor
automatically requests electronic evidence. Based
upon testimony that emails had been created that
might be relevant, the court determined that the
burden upon Welles was outweighed by the need for
the requested information and, therefore, that the
requesting party would be allowed to find an expert
to image the hard drive. The court would provide
a protective order for the expert to sign and the
information would only be provided to the producing
party. The producing party would then review
the material and produce anything responsive and
non-privileged for the requesting party.
Simon
Property Group L.P. v. mySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000).
The courts
sets forth a process for discovery by which an expert
from Computer Forensics, Inc.™ was chosen to
inspect computers. The expert was designated
as an officer of the court and asked to search the
data on the computers and provide a report to the
court. The court, in turn, provided the report
to the responding party to identify responsive and
non-privileged documents and to create a privilege
log and produce that material to the requesting
party. The expert was asked to destroy any
materials held in evidence at the conclusion of
the case.
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