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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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