2008-10-31 Source Code Production Compelled in Commercial Dispute - From Both Parties

In a decision from last week, a motion to compel production of source code was granted by a federal court in Wisconsin. In Metavante Corp. v. Emigrant Sav. Bank Slip Copy, 2008 WL 4722336 (E.D.Wis. 2008), Judge Stadtmeuller found that weighing all the factors, the balance tipped in favor of production (that Emigrant produced its source code to Metavante was also not lost on the court):

"The court finds that the source code Metavante utilized in its performance under the outsourcing agreement is relevant, or may reasonably lead to admissible evidence. See Fed.R.Civ.P. 26(b)(1). Metavante's source code may reveal the quality of the online banking product that Metavante delivered, and whether Metavante fully performed under the agreement. In balancing the value of the source code against the burden of producing it, the court finds that the potential value outweighs the burden. While Metavante asserts that the cost of producing its source code will be great, Emigrant has offered to mitigate the cost by using Emigrant's outside consultants to review the code and parse out any relevant information. Moreover, the parties have experience in exchanging the source code in this case. The court also recognizes that any confidentiality concerns that Metavante may have are addressed by the court's May 14, 2008 protective order. (Docket # 125)."

The production of source code will in all likelihood be more frequently requested, and produced (or production compelled) in future cases. Remarks in uncompiled code may reveal much about what code does (or fails to do) once compiled. It's not at all improbable that compilers may also be sought in future discoverty requests.

2008-10-26 Technology, Business and Litigation: Sword, Weakening Shield

This excerpt from AAB Joint Venture v U.S. , 75 Fed Cl. 432 (2008) provides what is perhaps an emerging judicial resistance to the defense of excessive burden presented by eDiscovery (as contradistinguished from non-e-Discovery):

"To permit a party “to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.” Linnen v. A.H. Robins Co., No. 97-2307, 1999 WL 462015, at *6 (Mass.Super. Ct. June 16, 1999)."AAB Joint Venture v U.S. , 75, Fed Cl. 432, 443 (2008)

2008-10-25 Custody or Control Decision Includes Computers at Work or at Home

The Court in Allcare Dental Management, LLC v. Zrinyi, 2008 WL 4649131 (D.Idaho 2008) addresses the scope of a discovery request "custody and control language. The Court held that custody or control expressly included those computing equipment regardless of geographic location.

"Defendants Zrinyi and Greene are further ordered to make available to Plaintiffs' designated computer forensics expert any and all computers and portable or detachable hard-drives in Defendants' possession, custody, or control and used by Defendants since August 24, 2008, including but not limited to any computer or portable or detachable hard drive in their homes or place of business. Defendants shall make available all of the computer equipment described above, at their places of business or residences, to Plaintiffs' designated computer forensics expert immediately upon being served with a copy of this Memorandum Decision and Order."

2008-10-20 Discovery Abuse Sanctions in the District of Columbia Circuit

In Perez v. Berhanu --- F.Supp.2d ----, 2008 WL 4604065 (D.D.C. 2008) the Court provides a good analysis of discovery sanctions approach by the D.C. Circuit. In this case, the Court discusses that an imposition of the most severe sanctions, and the D.C. Circuit's requirement that “willfulness or at least gross negligence” is required to justify the most severe discovery sanctions). In this matter, the discovery abuse was so egregious (failure to respond to discovery requests) that the Court granted a default judgment rather than compelling response from the defendant.

2008-10-04 No Ask, Maybe Get: TIFF Files Held Not Reasonably Searchable

In a September 15, 2008 decision in the case of Goodbys Creek, LLC v Arch Ins. Co., Inc. (2008 WL 4279693 (MD FL 2008), Magistrate Judge Snyder, while recognizing that a failure to ask for native data format may waive a later request for same, nevertheless accepted the assertion that a production of a tiff format file made searching them "much more difficult" and compelled defendant to (and apparently in the alternative) to:

"provide any documents previously supplied as TIFF images in their native data format, provide any documents in another comparably searchable format, or supply Goodbys with software for searching the TIFF images."

This decision represents a departure from recent decisional authority that (1) holds a requesting party to its first request language, and in the absence of a specific format request, (2) permits a producing party to provide only "reasonably usable" ESI.

2008-10-03 Jury Acquits Former McAfee GC of 4 of 5 Counts, Hung on Fifth

The most appropriate commentary on the what appears to be an inexcusably late production of emails that would have bolstered the defendant's case here is the jury's verdict of acquittal.

2008-10-03 eMail Production Delay Blamed on Contract Lawyers

Add these ingredients together and you may see why Judge Patel said "heads will roll":
1. Subpoena to company whose former general counsel is on trial for options backdating served two years before trial.
2 On the eve of trial, relevant emails (reportedly critical to defense argument) are produced.
3. Delay excuse: Blame for the delay was place on "contract attorneys.

Most states (and the ABA) require that an attorney maintain adequate supervision over others working for them --- and this requirement extends to "contract" lawyers.

Update: McAfee attorneys claimed the delay was "inadvertant," and defendant's counsel was "astonished." Judge Patel ordered McAfee's counsel to provide an explanation of how the discovery system worked. Judge Patel toned down a bit and stated "Ok, nobody's head rolled."

I don't think we've seen the last of these incidents.