1. Supreme Court
1. Employment
2. Torts
2. Court of Appeals
1. Civil Procedure
2. Constitutional Law
3. Contracts
4. Dram Shop
5. Employment
6. Federal Preemption
7. Improvements To Real Property
8. Insurance
9. Torts
10. Unemployment Benefits
3. Federal Court
1. Employment
2. Insurance
3. Jurisdiction
4. Torts

4. Minnesota Workers' Compensation
1. There were no updated cases for review as of the printing of this Newsletter.
5. Wisconsin Workers' Compensation
1. There were no updated cases for review as of the printing of this Newsletter.
6. Michigan Workers' Compensation
1. There were no updated cases for review as of the printing of this Newsletter.

7. U.S. District Court

The Minnesota Supreme Court reversed the Court of Appeals in this employment case, ruling that an employee has not earned the right to payment in lieu of paid time off when she has failed to meet the conditions in the employment contract entitling her to that payment. Susan Lee began this claim in conciliation court, alleging that Fresenius Medical Care failed to compensate her for paid time off. The highest court found that the terminated-for-misconduct provision in her employment contract explicitly made Lee ineligible for payment. Though Minnesota law provides that "wages or commissions actually earned and unpaid at time of discharge are immediately due and payable upon demand," the statute does not create a substantive right to vacation pay and does not prohibit the contractual definition of vacation wages as subject to conditions expressed in the contract.

The Minnesota Supreme Court determined that where a stable owner provided room and board and a stable home environment to a child for an entire summer, a special relationship was created that imposed a duty on the owner to protect the child from foreseeable sexual abuse by a resident adult. However, the Supreme Court did not determine if the sexual abuse was foreseeable. Finally, the Court held that primary assumption of risk does not apply to a claim that a homeowner negligently failed to protect the resident child from sexual abuse by a resident adult.

This case involved a teenager, Bjerke, who was provided room and board by an attorney, Johnson, who was also a stable owner. The attorney had a live-in adult male resident in the home as well. Throughout the initial summer, the teenager stayed at the attorney's home and also stayed during subsequent visits over a period of years. The adult male resident was determined to have had a sexual relationship with the teenager. As a result of that relationship, the adult male resident was convicted in criminal court for events relating to that relationship. The teenager brought a civil suit against not only the adult male resident but also the attorney based on a theory of negligence in providing her with a safe environment. The Supreme Court determined that based on the circumstances of Bjerke's stay at Johnson's home that Bjerke lacked "normal opportunities for self-protection" because she was a minor child, living apart from her parents and under the duty, care and supervision of Johnson. As such, the Supreme Court determined that a special relationship did exist under Restatement (Second) of Torts . 314A. The Supreme Court further determined that although a duty did exist that there were genuine issues as to whether the sexual relationship between Bjerke and the adult male resident was foreseeable to Johnson under the circumstances, particularly in light of the fact that Bjerke admits she attempted to hide the relationship, but where there was some alarming behavior between Bjerke and the adult. Finally, the Court determined that the primary assumption of risk does not apply to bar the plaintiff's negligence claim against Johnson reasoning that where the Legislature in Minnesota has clearly determined that a minor is incapable of giving consent for purposes of a criminal prosecution that Ms. Bjerke, due to her age, could not assume the risk associated with such a relationship.

The Court of Appeals determined that the longstanding rule in Minnesota is that statutes of limitation are procedural for the purposes of a conflict-of-law analysis. In this case, a Minnesota corporation filed suit against a California corporation for breach of contract, negligence and conversion. The Court of Appeals determined that the District Court erred in dismissing the case based on California's statute of limitation because statutes of limitation for common law causes of action are procedural for purposes of conflict-of-law analysis in Minnesota courts. Minnesota's statute of limitation for the claims was a six-year statute of limitation.

The Court of Appeals reversed and remanded the District Court enforcement of the plaintiff's foreign judgment. The Court ruled that when personal jurisdiction has been waived, the Full Faith and Credit Clause does not permit challenges to a foreign judgment on the basis that the foreign court lacked personal jurisdiction. However, if a foreign judgment has been obtained through fraud, the Full Faith and Credit Clause does not require Minnesota courts to enforce the judgment.

The Court remanded the case back to the District Court for determination of whether the foreign judgment should be disregarded on the basis of fraud. The plaintiff law firm was seeking to recover the payment of attorney's fees from its client's parents; however, it was established that the promissory note and security agreement referred to in the plaintiff's affidavit were not signed by the defendant parents.

The Court of Appeals affirmed the District Court's summary judgment ruling against a commercial buyer on a breach of contract claim. The plaintiff agreed to purchase automotive paint coating exclusively from Valspar for a minimum of five years in exchange for a prepaid rebate. The agreement required the buyer to give the seller written notice to provide in reasonable detail the cause of default and granting a reasonable cure period. The buyer's own admissions demonstrated that it failed to give notice of its intent to reject or revoke the products within a reasonable time and in the written form as required by the agreement. The Court also affirmed the District Court's grant of summary judgment in favor of the seller on all of the buyer's counterclaims.

The Court of Appeals upheld the District Court's declaratory judgment that the indemnity agreements contained in the subcontractor's contracts with the general contractor were valid and binding and obligated the subcontractors to defend and indemnify the general contractor from all claims relating to the subcontractor's work.

The homeowners commenced a claim against the general contractor, Howard Homes, Inc., alleging problems with moisture intrusion and code violations. The general contractor tendered the defense of the claims to its subcontractors based on the indemnity clause that the general contractor entered into with the subcontractors, wherein it was agreed that the subcontractors would defend and indemnify the general contractor against any claims "arising out of or in any way relating to the work, services or activities of the subcontractor." The Court upheld that the indemnification provision was valid because it did not require the subcontractors to indemnify the general contractor for the general contractor's negligence and it did not violate the statute prohibiting that type of clause.

In this dram-shop case, the Court of Appeals affirmed the decision of the District Court refusing to adopt Restatement (Second) of Torts . 433B (1965) regarding alternative liability. Plaintiff commenced a dram shop lawsuit following the death of Marwick. Marwick's death was the result of injuries he sustained in a motor vehicle accident while a passenger in a car driven by Lofquist. Marwick and Lofquist had been drinking heavily for several hours prior to the accident with alcohol they received from Leinonen who received it from Starkovich. Starkovich testified that the cases of beer sold to Leinonen were left overs from several purchases he had made in the past for his personal consumption from the four defendant liquor stores. The District Court refused plaintiff's request to adopt section 433B regarding alternative liability and instead granted the defendants' motions for summary judgment. The Court of Appeals affirmed, noting that Minnesota has not adopted the theory of alternative liability and the burden of proving each liquor stores' liability remains with plaintiff. Plaintiff could not meet that burden here because plaintiff cannot prove which liquor store sold the beer that was eventually consumed by Lofquist resulting in Marwick's death.

In this decision construing Minnesota's whistleblower statute, the Court held the employee failed to establish a prima facie case because he did not engage in protected conduct. In August 2001, French was hired as a parts person for Brookdale Motor Sales, Inc., d/b/a Luther Brookdale Buick Pontiac GMC ("Luther Brookdale"). French submitted a consumer complaint to the Minnesota Attorney General's office and Better Business Bureau after determining that Luther Brookdale had submitted a warranty claim to GM on a vehicle. A month after French made his complaint to the Attorney General's office he met with Johnson, the General Manager of Luther Brookdale, who told him that he would have "fired [his] ass" if French had not been a union member. A month later, after Luther Brookdale received a letter from the Better Business Bureau, French was again called into Johnson's office and told he would be fired if the complaints did not stop. French was later terminated for insubordination because he had parked his vehicle in an area he had been instructed by management not to park. Thereafter, French filed a grievance with his union regarding his termination but did not tell the union representatives he believed he had been terminated because of his complaints to the Better Business Bureau and the Attorney General's office. An agreement was reached with the union.

In October 2005, French filed a Complaint in Hennepin County District Court alleging retaliatory termination and violation of Minnesota's whistleblowers statute. The District Court granted Luther Brookdale's motion for summary judgment holding French's reports to the Better Business Bureau and the Attorney General's office were not protected conduct under the whistleblower statute. The Court also found French's reliance on Minn. Stat. § 325F.69, the prevention of Consumer Fraud Act, was misplaced because it does not apply to transactions between merchants, and French's complaints did not support an allegation of identity theft. Upon appeal, the Court affirmed the decision of the District Court.

The Court of Appeals reversed a determination of the Minnesota Public Safety Officer Eligibility Panel (MPSOEP) denying a claim by a firefighter for continuing health care benefits under Minn. Stat. § 299A.465. The Court determined that the injury which caused Mr. Sletten to retire occurred while he was performing a cave rescue in 2004. The Court of Appeals further determined that the cave rescue was an occupational duty or professional responsibility that put him at risk for the type of injury he sustained.

The Court did not address the issue of whether a prior injury caused by moving a chair as part of cleaning the fire house would be the type of injury that would allow continuing benefits under the statute. However, with regard to that injury, the Court stated that an applicant for benefits under section 299A.465 does not have to sustain an injury while "fighting fires" or "shooting at the bad guys" to be eligible for benefits under the statute.

The Court of Appeals reversed and remanded the District Court's order dismissing the plaintiffs' class action relating to lowered tar filter cigarettes manufactured, distributed, marketed, and sold by defendant, because plaintiffs' claims were not expressly or implicitly preempted by federal law. The plaintiffs' state-law claims were based on common law intentional fraud and misrepresentation, unjust enrichment and violations of numerous consumer protection statutes.

The Court ruled that the plaintiffs' class action is not barred by the federal preemption statute. The state law claims for intentional fraud and misrepresentation that are not predicated on a duty based on smoking and health are not preempted by federal law.

In this case, the Court construed the limitations period for statutory-warranty and common-law negligence claims. In 1989, Bruber contracted with Harvey Homes, Inc. ("Harvey") to build their home. Construction was completed in early 1990, the Brubers moved into the home in June 1990, and in April 1991, the City issued a Certificate of Occupancy. In June 2004, the Brubers noticed for the first time damage caused by moisture and water infiltration problems on exterior walls including areas around several windows. After discovering the damage the Brubers contacted Greene, who had worked at Harvey, to provide notice of the damage. In July 2004, Greene sent the Brubers an email providing contact information for Harvey's insurance agent. In September 2004, the Brubers' attorney notified Harvey's former insurance agent about the discovery of the water damage. In October 2005, the Brubers brought a statutory-warranty claim pursuant to Minn. Stat. § 327A.05 and a common-law negligence claim against Harvey, Marvin Windows, Inc. ("Marvin"), and various unnamed parties. In August 2006, Harvey moved for summary judgment on all Brubers' claims arguing the statute of repose barred the claims. The District Court granted judgment in favor of Harvey finding the Brubers' claims were time-barred and the Brubers did not raise a genuine issue of material fact on their fraudulent concealment claim. On appeal, the Court affirmed as to the fraudulent concealment argument. As to the statutory-warranty claim, the Court reversed the District Court finding that a statutory-warranty claim accrues when the homeowner discovers, or should have discovered, the builder's refusal or inability to ensure the home is free from major construction defects. The Court noted that there was evidence sufficient to establish a fact issue regarding whether the Brubers should have discovered by July 31, 2004, any inability by Harvey to ensure the Brubers' home was free from major construction defects.

The Court of Appeals in this decision determined that the insurer could relitigate issues regarding policy exclusions for bodily injury caused by intentional acts and those arising out of sexual molestation despite the fact that in an underlying tort claim the insured was found not to have acted in an intentional manner based on his profound mental retardation. The Court determined that the intent to injure for purposes of insurance policy context can be inferred as a matter of law without consideration of the insured's subjective view. Thus, despite the insured's mental retardation, the intent to injure could still be inferred from his conduct. As support for this determination, the Court highlighted the fact that the insured admitted to the psychologist that he "bad touched" the other party.

In this case construing a business liability clause in an insurance policy, the Court affirmed the District Court's grant of summary judgment to R & H Painting ("R & H") on the grounds that the language of the insurance policy was unambiguous and the reasonable-expectation doctrine did not apply. R & H is a commercial/industrial painting business with business liability insurance from Acuity Insurance Company ("Acuity"). Acuity's policy stated the following, "[t]he deductible amount shown in the Schedule applies to all damages sustained by any one person or organization because of property damage as the result of any one occurrence."

R & H had an overspray incident in 2003, which resulted in damage to 15 cars owned by individual owners, 13 of whom made claims. R & H made a claim on the Acuity policy, and Acuity charged appellant for only one $250 deductible. R & H had two more overspray incidents in 2004, which resulted in claims for property damage. R & H again made a claim on the Acuity policy; however, Acuity charged a $250 deductible for each individual claim. When R & H refused to pay the deductible amount, Acuity commenced suit in Conciliation Court and obtained a judgment for the full amount of the deductibles. Thereafter, Acuity requested payment for 43 separate deductibles as a result of claims associated with another 2004 overspray incident. R & H again paid only one deductible leaving the other 42 unpaid. Acuity commenced suit in District Court seeking $10,500. Both parties moved for summary judgment which was granted to Acuity. On appeal, the Court affirmed finding the insurance contract was not ambiguous and declined to apply the reasonable-expectation doctrine since application of the reasonable-expectation doctrine would defeat the plain language of the policy.

In this declaratory judgment action, the Court of Appeals affirmed the District Court holding T.H.E. Insurance Company's policy limit was $1 million. The District Court, construing the plain language of the policy, found that it provided $1 million of coverage for Marina Operators. The Court found that the language of the policy was unambiguous and to interpret it otherwise would render the coverage B limit meaningless as well as the definition of aggregate limit, as the only real limit for coverage B would be the aggregate amount of $2 million. The Court of Appeals affirmed noting that the language at issue applied only under a fact scenario in which there were multiple coverage issues and because only one coverage provision was at issue, there was no ambiguity.

In this decision, the Court of Appeals construes the "active accessory" language of the Minnesota No-Fault Act (the "Act"). Blaw intended to use his mini van to run several errands. He left home, ran his first errand and drove to a car wash. At the car wash he began vacuuming the inside of his vehicle. While vacuuming his vehicle, a young person approached the vehicle with a gun and told Blaw to give him his wallet and threatened Blaw with his gun. While Blaw removed his wallet from this pocket, the gun discharged and wounded Blaw. Blaw suffered serious and permanent injuries as a result of the shooting. State Farm moved for summary judgment and the District Court determined that under the No-Fault Act, Blaw's injuries did not arise out of maintenance or use of a motor vehicle because the vehicle was not an active accessory in causing Blaw's injuries. The Court of Appeals affirmed the District Court's decision denying no-fault benefits.

The Minnesota Court of Appeals held that trucker Charles Williams' action was not barred by claim preclusion even though issues and events related to his multiple-vehicle accident had been litigated previously. On a foggy morning in December 1999, Williams and another trucker, Whitehead, were both driving north on I-35 when Whitehead pulled his tractor-trailer from the shoulder and Williams rear-ended his truck. A third driver, Van Guilder, hit Williams' truck as it jack-knifed across I-35. Van Guilder sued both Williams and Whitehead, and a jury found Williams 40% negligent, Whitehead 37.75 % negligent, and Van Guilder 22.25% negligent. Williams then brought a separate suit against Whitehead, but the District Court dismissed the action on the grounds that the issues had already been litigated. The Court of Appeals reversed, finding that the issues in this action were Williams' injuries, not Van Guilders', and there had been no final judgment on the merits as to whose negligence was responsible for the separate collision of Whitehead and Williams.

The Court of Appeals affirmed the decision of the District Court to grant the summary judgment motion of a landlord based on the fact that the landlord did not "keep or harbor" a pit bull as those terms are used in Minn. Stat. § 347.22. The Court of Appeals decided that a landlord transferred control of a bedroom to the tenant and as the dog bite occurred in that room, the landlord was not keeping or harboring the pit bull and, therefore, could not be secondarily liable under the dog bite statute.

In this decision, the Court construed the sufficiency of a Complaint pursuant to Minn. R. Civ. P. 12.02. Weaver was a fugitive charged with the murder of his wife and began renting part of the Jaramillos' home under the alias "David Carson." Over the next four years, Weaver gained the friendship and the trust of the Jaramillos and was named a successor trustee of the Jaramillo family trust. Weaver's parents maintained two forms of contact with their son while he was living in the Jaramillos' home including mailing statements of a credit card with the name of David Carson and his mother posing as David Carson's Aunt Rita, who called the Jaramillos' home once a month to speak with Weaver.

Weaver was apprehended in May 2004 and in April 2006, the Jaramillos initiated the present lawsuit claiming Weavers' parents' phone contact and financial support of their fugitive son constituted actionable invasion of privacy, negligence and negligent infliction of emotional distress. The Weavers moved to dismiss the Complaint on Rule 12.02(e), which was granted by the District Court. On appeal, the Court considered the three counts of the Complaint. As to its claim of intentional intrusion on seclusion, the Court affirmed the District Court's holding finding the limited contact between the Jaramillos and Weaver's mother and the telephone calls and credit card statements did not rise to the level of a substantial intentional interference with the Jaramillos' seclusion. The Court also found the calls from "Aunt Rita" and credit card statements would not be highly offensive to a reasonable person. The Court did not consider the legitimate expectation of privacy in the home claim. As to the claim of negligence, the Court found that the Weavers' parents owed no duty to the Jaramillos.

The Court of Appeals determined that the dismissal of Vicky Stewart's appeal from the unemployment compensation-disqualification determination was properly dismissed based on the fact that the unemployment law judge had no jurisdiction to review an untimely appeal. With regard to the dismissal, the Court found that the timeliness for unemployment compensation decisions are "absolute," and if an appeal is untimely, it must be dismissed for lack of jurisdiction. The Court of Appeals also did not accept the arguments of Ms. Stewart regarding her communications with the Minnesota Department of Employment and Economic Development (DEED) staff, which she alleged led to her confusion regarding the timeliness of her appeal.

Wal-Mart terminated Harris after he failed to submit to a drug test under its policy pursuant to the Minnesota Drug and Alcohol Testing in the Workplace Act (the "DATWA"). Harris brought suit alleging that Wal-Mart's termination of his employment violated the DATWA and also that he was terminated in retaliation for filing a workers' compensation claim.

The Court found issues of fact regarding Harris' claim that Wal-Mart's drug testing policy was arbitrary and capricious.

As to Harris' retaliation claim, the Court found that Wal-Mart did not terminate Harris because he filed a workers' compensation claim. Harris was terminated within two days after Wal-Mart attempted in various ways to contact him in order to schedule a follow-up drug test. It was only after Wal-Mart received notice from the Post Office that Harris had refused to accept a certified letter that Wal-Mart terminated him. Based on these facts, the Court found that Wal-Mart's reason for terminating Harris was not based on the fact he filed a workers' compensation claim but that he failed to submit to a drug test as required under Wal-Mart's employment policy. The only evidence supporting Harris' claim was the close proximity and time between his filing of his workers' compensation claim and his termination. The Court found that this was not sufficient to show that he was terminated for filing a workers' compensation claim.

In this case the District Court granted the Minnesota Counties Insurance Trust's ("MCIT") summary judgment motion precluding coverage of counterclaims made by Barlow Projects, Inc. against Todd County, Wadena County and Otter Tail County ("the Counties") based on an exclusion which did not provide coverage for intentional acts of the Counties.

MCIT sought to preclude coverage because the counterclaims arose out of conduct that was committed intentionally and with knowledge of wrongdoing. The Court found that the Counties had a dual purpose in interfering with the City's contract with Barlow and that they intended to cause the breach and intended to interfere with Barlow's prospective economic relationships and were successful in doing so. The Court therefore felt that MCIT's reliance on the intentional acts exclusion was appropriate and that its summary judgment motion precluding coverage should be granted. The Court did not find support for MCIT's other argument to preclude coverage based on breach of contract, because the Counties were third-party beneficiaries.

This case involves an insurance coverage dispute regarding the applicability of a "your work" exclusion to an insurance policy. Web Construction, Inc. ("Web") was a general contractor who entered into a contract with Itron, Inc. ("Itron") for the installation of a concrete slab floor at Itron's facility. Web requested a bid from Owatonna Concrete Products ("Owatonna") for materials and services which was later accepted. Web and Owatonna did not enter into a written subcontract agreement. Web was required by the Specifications Manual to provide concrete without shale. A few months after the concrete floor was installed, Itron noticed cracks and "popouts" in the surface of it. Itron filed an arbitration demand against Web seeking damages for the defects in the concrete floor. An arbitrator rendered a decision against Web awarding damages. The arbitrator found that the concrete furnished by the project by Web contained shale and the chemical reaction to shale in the concrete mix caused popouts.

Web was insured under a Commercial General Liability ("CGL") policy issued by Cincinnati. The policy provided that the insurance applied to "property damage" only if it was caused by an "occurrence." An occurrence was defined as "an accident, including continuous or repeated exposure to substantially the same general conditions." The policy also included a "your work" exclusion. However, the exclusions provided that it "did not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor."

Applying the plain language of the policy, the Court found there was a "occurrence" because the concrete floor defects constituted an accident. Further, the Court also found the record clearly indicated that popouts in the concrete floor constitute "property damage" under the policy because such defects cause "physical injury" to the floor. Finding the policy provided coverage, the Court went on to determine if any exclusion applied. The Court noted that "when a supplier custom fabricates materials to the owner's specifications and provides on-site services in connection with the installation, the supplier meets the definition of subcontractor under the exception to the your work' exclusion." The Court, however, found that there existed genuine issues of material fact with respect to Owatonna's role in the Itron project because it was unclear as to whether Owatonna ever received the Specifications Manual, whether Owatonna was aware of the specifications for the concrete mix, in particular that it contain no shale, that there was no written agreement between Web and Owatonna for performing on-site services, and that Web was unaware that Owatonna had delegated the fabrication and distribution services to other companies until after delivery and installation of the concrete began. Accordingly, the Court found that neither party satisfied its burden of demonstrating that no genuine issue of material fact existed and both parties' motions for summary judgment were denied.

The Court of Appeals affirmed the District Court's decision finding that there was no personal jurisdiction over the foreign defendants in this matter. This suit materialized in the wake of one brother, Edward, selling his share in the family-owned company to his brother Louis. The plaintiff in this matter, the daughter of Edward, sued other relatives. Dr. Coen, the plaintiff, resided in Minnesota and brought this suit in this state despite the fact that the other members of her family live in England and France. The family held company is also a foreign corporation. The Court determined that the few contacts between Edward and Louis regarding the sale of Edward's portion of the company did not meet the "minimum contacts" requirement of the due process clause allowing the forum state to assert personal jurisdiction over nonresident defendants. In fact, the closest contact was one personal meeting in New York.

The Court of Appeals also stated that the inconvenience of the parties, under the facts of this case, is also a significant factor militating heavily against Dr. Coen, the plaintiff, for purposes of establishing personal jurisdiction over the foreign defendants. The Court finally, without deciding the merits of plaintiff's fraud claim against the defendants, determined that the allegation by plaintiff failed to support a claim of fraud with material consequences felt in Minnesota and thus the District Court of Minnesota could not exercise jurisdiction.

The Eighth Circuit Court of Appeals held that under Minnesota law, a company's workers' compensation immunity may be lost and a general contractor may be held liable in a court action for damages where an injured employee of its subcontractor sustains injuries on the jobsite after the subcontract work is completed. After he was hit by a heavy metal object which fell 140 feet from a water tower on Maguire Tank's job site, John Lundstrom collected workers' compensation from his employer, subcontractor Truck Crane Service Company, and sued general contractor Maguire Tank for negligence. The District Court dismissed the lawsuit because Lundstrom was a "loaned servant" and workers' compensation statutes protect employers from further liability. But the Eighth Circuit found that neither the facts of the case nor the agreements of the parties showed such a special employment relationship between Maguire Tank and Lundstrom. Since the subcontractor had arguably completed the work under the subcontract, it was error to find as a matter of law that Lundstrom was doing Maguire Tank's work.

There were no updated cases for review as of the printing of this Newsletter.

There were no updated cases for review as of the printing of this Newsletter.

There were no updated cases for review as of the printing of this Newsletter.

In this action brought under the Sarbanes-Oxley Act, the Court denied plaintiffs' motion to compel further production of documents. The plaintiffs were former employees of defendant Levi Strauss & Co. (LS & C), and claimed defamation and that they were terminated in retaliation for filing complaints about defendants' alleged tax fraud and other accounting irregularities. Defendants contended that plaintiffs were fired for insubordination and for work performance issues. LS & C filed counterclaims against plaintiffs, alleging that they wrongfully took confidential company documents when they were terminated.

The plaintiffs sought an order compelling LS & C to reproduce its entire document production in native electronic format. LS & C's prior production occurred before the recent amendments to the federal rules concerning electronic discovery. In addition, the Court noted that under the current rules, where "a request does not specify the form or forms for producing electronically stored information," then "a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable." Further, unless the parties agree or the court otherwise orders, "a party need not produce the same electronically stored information in more than one form." The Court therefore declined to compel reproduction in native file format.

In this discrimination, assault, and battery case, the Court granted in part and denied in part defendant's motion concerning the production of images on plaintiff's cell phone. Plaintiff was ordered to preserve the images and to permit inspection by one attorney designated by defendant. Plaintiff was formerly employed as a host and waiter at Caf‚ Asia, where he claimed he was the victim of discrimination based on his sexual orientation, in violation of the District of Columbia Human Rights Act ("DCHRA"), and that he was the subject of assault and battery in the form of unwanted touching. The Court analyzed the situation in light of Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 412.

In this case, the Court ordered the defendant to produce a DVD containing thousands of emails. Plaintiff alleged that her disability insurer breached the insurance contract in bad faith. Defendant insurer sought the production of a DVD created by the University of Denver and containing emails sent or received by plaintiff using her email account at the University of Denver. The DVD contained far more information than plaintiff had disclosed. While plaintiff claimed that she acted in good faith with respect to the contents of the DVD, the Court held that this argument went only so far, and that plaintiff's counsel could not continue to plead technical ignorance or mistake after being made aware of potential production problems.

In this case, the Court denied plaintiff's motion for sanctions for failure to comply with a Court Order to produce electronically stored information. The Court had directed defendant to supplement its responses to plaintiff's production requests, specifically with regard to electronically stored documents. The issue was whether defendant violated the Order because its supplemental disclosures, many of which were produced on CD-ROMs in readable PDF form, did not include "metadata," and were not produced in "native format." The Court's Order did not specifically address metadata, and the Court agreed with defendant that producing the metadata would be unduly burdensome. Therefore, the Court found no violation of its order and imposed no sanctions.