Motion for Protective Order – Page 10 – Electronic Discovery Law

Stinson v. City of New York, no. 10 Civ. 4228(RWS), 2014 WL 5090031 (S.D.N.Y. Oct. 10, 2014)

Dec 01 2014

Key Insight: Where defendants inadvertently produced two privileged documents along with large volume of ESI, and 14 days later notified plaintiffs of such inadvertent production, and six days after that filed motion for order to show cause to compel plaintiffs to immediately return the privileged documents, court rejected plaintiffs? contention that they should be allowed to retain and review a copy of the privileged documents for the purpose of opposing the privilege claim and ordered plaintiffs to return all copies of the privileged documents to defendants; plaintiffs would be permitted to rely on any material learned prior to defendants? letter in challenging defendants? assertion of privilege

Nature of Case: Section 1983 class action against city, police department commissioner, and police officers, alleging defendants had a policy of issuing unconstitutional summonses in violation of First, Fourth, Fifth, Eighth, and Fourteenth Amendments

Electronic Data Involved: Privileged ESI

BLX Commercial Capital, LLC v. Bilco Tools, Inc., No. 14-0306, 2014 WL 6684929 (E.D. La. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where defendants requested emails from six employees and all emails regarding liquidation and appraisal of Bilco, and request was further narrowed by the use of eight search terms, plaintiff?s counsel was unable to articulate a specific reason why emails were not relevant and represented to the court that he had not actually reviewed any of the emails at issue to determine their relevancy, court denied plaintiff?s motion for protective order and granted defendants? motion to compel production of emails

Nature of Case: Breach of loan agreement

Electronic Data Involved: Email of current and former BLX employees

Kelley v. Smith?s Food & Drug Ctrs., Inc., No. 2:14-cv-00856-RCJ-CWH, 2014 WL 6474026 (D. Nev. Nov. 19, 2014)

Dec 01 2014

Key Insight: Store video was not protected from production by the impeachment evidence exception because the video?s impeachment value was too closely linked to its substantive value, and the evidence the video offered could not be realistically confined to use for impeachment purposes only; court granted both plaintiff?s motion to compel production of the video and plaintiff?s motion for protective order, which protected plaintiff from being forced to submit to a deposition without first being able to view the video

Nature of Case: Slip and fall

Electronic Data Involved: Store video containing footage of plaintiff’s slip-and-fall

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

Finkle v. Howard Cnty., Md., No. SAG?13?3236, 2014 WL 6835628, (D. Md. Dec. 2, 2014)

Dec 01 2014

Key Insight: District Court granted Defendant?s Motion for Protective Order and denied Plaintiff?s Motion to Compel, finding that Plaintiff?s Interrogatory seeking the identification of all email accounts, social media services, internet discussion groups, cellular telephone or text messaging services used by certain County employees from January 2010 through the present, for the purpose of issuing a subpoena to the appropriate service providers, would impose an undue burden on Defendant and that Plaintiff was not lawfully entitled to the content of those accounts under the Stored Communications Act (?SCA?); regarding its reliance on the SCA, the court specifically reasoned that ?there is no reason to invite an unfettered ?fishing expedition? into the personal communications of non-party employees without a viable reason to believe that relevant information would be accessible to Plaintiff or would be contained therein.?

Nature of Case: Employment Discrimination (Title VII)

Electronic Data Involved: Account information for all email, social media (e.g., Facebook, MySpace), discussion groups, text messaging services, etc.

The Shaw Group Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 4373210 (M.D. La. Sep. 3, 2014)

Dec 01 2014

Key Insight: Where parties? agreed protective order stated that parties would endeavor to agree on search terms to be utilized in the search for responsive ESI, and current discovery dispute centered solely on the reasonableness of the search terms chosen by each party and the willingness of the parties to negotiate reasonable search terms, court rejected defendant?s proposed list of 90 search terms in light of plaintiff?s showing that the broad search would result in undue burden and expense by generating an excess of irrelevant documents, and instead ordered plaintiff to search for responsive documents using plaintiff?s 28 proposed search terms and protocol which the court found reasonable and well-tailored to locate responsive documents; court faulted parties for their lack of diligence in completing discovery within the court?s deadlines, observing: ?In short, both sides chose to do nothing, waiting to see if the other side would blink first. In doing so, they have compromised the deadlines in the court?s scheduling order, the briefing on dispositive motions, and have essentially gambled with the parameters of ESI discovery.?

Nature of Case: Insurance dispute

United States ex rel King v. Solvay S.A., No. H-06-2662, 2013 WL 820498 (S.D. Tex. Mar. 5, 2013)

Dec 01 2013

Key Insight: Court granted motion for protective order to limit unduly burdensome discovery and preservation demands where Defendant established the significant burden associated with preserving the multiple repositories of potentially relevant information covering 89 potential custodians, including thousands of back-up tapes, and where the court found that the allegations of the complaint did not justify the broad timeframe for discovery sought

Nature of Case: Qui Tam action alleging violations of anti-kickback statute and retaliation against Relators

Electronic Data Involved: ESI

Safety Today, Inc. v. Roy, Nos. 2:12-cv-510, 2:12-cv-929, 2013 WL 1282384 (S.D. Ohio Mar. 27, 2013)

Dec 01 2013

Key Insight: Court granted motion to compel inspection and imaging of certain of defendant?s computers/servers/devices in case involving accusations of misappropriation of confidential information by plaintiff?s former employees for the benefit of defendant but also granted defendant a protective order limiting disclosure for ?attorneys? eyes only?

Nature of Case: Missapropriation of confidential information

Electronic Data Involved: ESI

Samaritan Alliance LLC v. Commonwealth of Kentucky, Cabinet for Health & Family Servs., (In re Samaritan Alliance LLC), No. 12-5009, 2013 WL 653624 (Bankr. E.D. Ky. Feb. 20, 2013)

Dec 01 2013

Key Insight: Where ?the Cabinet? inadvertently produced privileged emails and later sought a protective order to preclude a finding of waiver, the court held that privilege had been waived citing the delay in requesting the emails? return, the failure to object to use of the emails as a deposition exhibit, the relatively small volume of information within which the emails had been disclosed and the highly relevant content of the emails at issue

Nature of Case: Medicaid reimbursement

Electronic Data Involved: ESI

EPL Holdings, LLC v. Apple, Inc., No. C-12-04306 JST (JSC), 2013 WL 2181584 (N.D. Cal. May 20, 2013)

Dec 01 2013

Key Insight: Addressing parties? proposed departures from the court?s Model Protective Order, court approved protocol requiring Plaintiff?s reviewers to utilize an encrypted computer provided by Apple to conduct review of source code, including taking notes, and a ban on cell phones and other recording devices while reviewing source code (Apple promised to provide a land line); court declined to modify the Model Order?s provisions regarding printing source code, which place the burden of persuasion on the requesting party when a request for paper copies is challenged; court declined to include provision allowing Plaintiff to make electronic copies of source code and approved Defendant?s proposal requiring the parties to meet and confer regarding any electronic submission of source code; court approved provision requiring Plaintiff to return or destroy any documents containing source code at end of litigation

Nature of Case: patent infringement

Electronic Data Involved: source code

Tag:Motion for Protective Order