Archive: 2009

1
Gregorio v. Yellow Transp., Inc., 2009 WL 3756493 (N.D. Ill. Nov. 5, 2009)
2
United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009)
3
Dawe v. Corrections, USA, 2009 WL 3233883 (E.D. Colo. Oct. 1, 2009)
4
High Voltage Beverages, LLC v. Coca-Cola Co. 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009)
5
Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)
6
Wells Fargo Bank, N.A. v. LaSalle Bank Nat?l Ass?n, 2009 WL 2243854 (S.D. Ohio July 24, 2009)
7
Craig & Landreth, Inc. v. Mazda Motor of Am., Inc., 2009 WL 2245108 (S.D. Ind. July 27, 2009)
8
Medcorp, Inc. v. Pinpoint Tech., Inc., 2009 WL 2194036 (D. Colo. July 14, 2009)
9
Nieves v. Kmart Corp., 2009 WL 1605623 (V.I. June 8, 2009)
10
Clubcom, LLC v. Captive Media, Inc., 2009 WL 1885712 (W.D. Pa. June 30, 2009)

Gregorio v. Yellow Transp., Inc., 2009 WL 3756493 (N.D. Ill. Nov. 5, 2009)

Key Insight: Court found no attorney-client privilege protection preventing production of employee’s email write up of an accident where Illinois law makes clear that ?employees who supply only the factual bases upon which the decisionmakers predicate their opinions? are not within the protected ?control group? pursuant to the relevant legal test and the communication was therefore not privileged; court also found no protection in the work product doctrine where the write up was generated in the usual course of business and was not of a ?legal nature? and ?primarily concerned with legal assistance?

Electronic Data Involved: Employee’s email description of accident

United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009)

Key Insight: Where request for production was unduly burdensome in light of the cost of production and necessary labor to comply, despite the requesting party?s attempt to narrow the scope, and where the court found the request overly broad and that it sought information irrelevant to the litigation, court declined to compel production in response to the particular request, but granted in part other portions of the motion to compel

Electronic Data Involved: ESI

Dawe v. Corrections, USA, 2009 WL 3233883 (E.D. Colo. Oct. 1, 2009)

Key Insight: Citing a ?pervasive? level of ?distrust that permeates this litigation? and plaintiff?s ?adamant refusal to permit even a limited inspection? and citing defendants? representations that additional, relevant information remained on the laptop and that the laptop had been ?forensically cleaned,? court granted defendants? motion to compel inspection of plaintiff?s laptop but ordered defendants to bear the cost – if inspection revealed relevant information was withheld, court invited a motion to shift some or all of the costs to plaintiff(s)

Electronic Data Involved: ESI, laptop

High Voltage Beverages, LLC v. Coca-Cola Co. 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009)

Key Insight: Where defendant represented that any additional searching would only result in the discovery and production of duplicative documents, court denied plaintiff?s motion to compel defendant to search an identified alternative source upon finding ?that requiring defendant to sift sand for documents it has already produced would be unreasonably duplicative of earlier efforts and that the material contained therein is likely available from other sources, to wit, an earlier production of documents?

Electronic Data Involved: ESI

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Wells Fargo Bank, N.A. v. LaSalle Bank Nat?l Ass?n, 2009 WL 2243854 (S.D. Ohio July 24, 2009)

Key Insight: Where plaintiff filed a motion to compel (or for sanctions) following its discovery that defendant failed to search a number of backup tapes and failed to maintain all tapes which may have contained responsive ESI, court denied the motion upon finding that burden of restoration of the tapes was ?disproportionate to the likely utility of doing so? and because LaSalle had a practice of printing and filing important emails; court also noted the parties? failure to adequately confer regarding the discovery of ESI

Electronic Data Involved: Backup tapes

Craig & Landreth, Inc. v. Mazda Motor of Am., Inc., 2009 WL 2245108 (S.D. Ind. July 27, 2009)

Key Insight: Rejecting defendant?s argument that production of ESI in PDF format was ?well within the requirements? of the rules where plaintiffs sought production in a searchable format and where the rules prohibit conversion to a more burdensome format for production, court granted plaintiffs? motion to compel and ordered production in native format and also ordered defendant to produce ?the appropriate individual? to assist plaintiffs in ?understanding how to manipulate the ?native format?? ESI produced

Electronic Data Involved: ESI

Medcorp, Inc. v. Pinpoint Tech., Inc., 2009 WL 2194036 (D. Colo. July 14, 2009)

Key Insight: Noting that a party seeking discovery from a non-party ?must satisfy a burden of proof heavier than the ordinary burden imposed by Rule 26 relating to discovery on any matter relevant to the subject matter involved in the pending action,? the special master quashed certain of plaintiff?s requests as overly broad and unduly burdensome including a request for forensic copies of a non-party?s employee work stations and server computers and a request for detailed information related to a the non-party?s technical environment, among others

Electronic Data Involved: Forensic copies

Nieves v. Kmart Corp., 2009 WL 1605623 (V.I. June 8, 2009)

Key Insight: Court denied plaintiffs? motion for a spoliation instruction where plaintiff failed to demonstrate that the allegedly spoliated videotape ever existed and where a witness testified at deposition that since he didn?t keep the videotape after checking it, it means no film was made of the relevant incident

Electronic Data Involved: Videotape

Clubcom, LLC v. Captive Media, Inc., 2009 WL 1885712 (W.D. Pa. June 30, 2009)

Key Insight: Where four privileged emails were produced among 4000 documents (in hard copy), where there was no indication that plaintiff produced the documents intentionally or failed to take reasonable precautions to prevent disclosure, and where plaintiff immediately took reasonable steps to rectify the error, court ruled privilege was not waived pursuant to Fed. R. Evid. 502(b)

Electronic Data Involved: Privileged emails

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