Case Notes

» \Race Tires America, Inc. v. Hoosier Racing Tire Corp.\, 2011 WL 1748620, No. 2:07-cv-1294 (W.D. Pa. May 6, 2011)
In an opinion highlighting the expense of modern litigation, Judge Terrence F. McVerry of the U.S. District Court for the Western District of Pennsylvania recently held that defendants who prevailed on summary judgement were entitled to a substantial award of costs for fees charged by their e-discovery vendors.

» Mintel International Group, Ltd. v. Meesham Neerghen
A party is not entitled to conduct its own forensic examination of a third party’s computers under the ruling in Mintel International Group, Ltd. v. Meesham Neerghen No. 08 CV 3939, 2008 WL 4936745 (N.D. Ill. Nov. 17, 2008). The plaintiff sued a former employee for trade secret theft after learning that the defendant emailed the plaintiff’s proprietary documents to his personal email account. The plaintiff feared the defendant had transferred the plaintiff’s proprietary documents to his new employer, one of the plaintiff’s competitors.

» Laethem Equipment Co. v. Deere & Co.
The plaintiff’s inadvertent disclosure of privileged materials on two disks did not constitute a blanket waiver under FRE 502 in Laethem Equipment Co. v. Deere & Co., No. 2:05-CV-10113, 2008 WL 4997932 (E.D. Mich Nov. 21, 2008). The parties agreed to an “inspect and copy” format whereby the party’s exchanged lists of potentially relevant ESI.
» Rhoads Industries, Inc. v. Building Materials Corp. of America
In Rhoads Industries, Inc. v. Building Materials Corp. of America, C.A. No. 07-4756, 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008), FRE 502 protected the plaintiff from waiver of attorney-client privilege after inadvertent production of privileged emails. The court analyzed the defendant’s motion for deemed waiver and the plaintiff’s production under the new Federal Rule of Evidence 502 and the five-factor test from Fidelity & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D. Pa. 1996).

» Aguilar v. Immigration and Customs Enforcement Division of the U.S. Department of Homeland Security
Metadata production should be discussed early in the case to avoid court involvement and additional litigation expense. In Aguilar v. Immigration and Customs Enforcement Division of the U.S. Department of Homeland Security, 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 21, 2008), the plaintiffs filed a motion to compel the defendant’s production of metadata. The court emphasized that at the outset of any litigation involving electronically stored information (ESI), the parties should discuss whether producing metadata is appropriate.
» D’Onofrio v. SFX Sports Group, Inc.
Federal Rule of Civil Procedure 34 does not require metadata to be produced unless a party requests it.In D’Onofrio v. SFX Sports Group, Inc., 2008 U.S. LEXIS 4252 (D.D.C. Jan. 23, 2008), the plaintiff filed a motion to compel the defendant to produce a business plan in native format, including metadata. The plaintiff argued that Rule 34 permits the production of documents outside of their native format only “if necessary,” and, in this case, no such necessity existed.