Motion for Protective Order – Page 12 – Electronic Discovery Law

Richards v. Hertz Corp., —N.Y.S.2d—, 2012 WL 5503841 (N.Y. App. Div. Nov. 14, 2012)

Dec 01 2012

Key Insight: Where the public contents of one plaintiff?s Facebook account established that it was ?reasonable to believe? that other relevant information may also be present but where lower court only directed plaintiff to produce certain relevant photographs, appellate court remanded with instruction that the court conduct in camera review of ?all status reports, emails, photographs, and videos? to determine which of those materials, if any, were relevant; as to a separate plaintiff where no showing of potential relevance was made, appellate court found lower court properly granted her motion for a protective order

Nature of Case: Personal injury arising from auto accident

Electronic Data Involved: Social Network contents

Vasudevan Software, Inc. v. Microstrategy, Inc., No. 11-cv-06637-RS-PSG, 2012 WL 5637611 (N.D. Cal. Nov. 15, 2012)

Dec 01 2012

Key Insight: Concluding that without more information it could not determine the reasonableness of Plaintiff?s request that Defendant use specific search terms for specified custodians, court ordered Defendant to run a searching using each of Plaintiff?s search terms against five custodians and for the parties to then meet and confer to attempt to reach resolution of their dispute and to return to the court if such resolution could not be reached; parties utilized modified version of Federal Circuit?s Model Order on E-Discovery in Patent Cases

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Adkins v. EQT Prod. Co., No. 1:10cv00041, 2012 WL 5465491 (W.D. Va. May 31, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s Motion for a Protective Order based on undue burden, court was ?persuaded? that no review was necessary to protect privilege because of the parties? Clawback Order and further found that a reasonable approach in light of Defendant?s assertions of burden (including that processing and review costs could exceed 4 million dollars, as represented by Defendant?s litigation support vendor) was to require Defendant to search and filter its ESI itself (rather than relying on the vendor), with all emails to be designated ?confidential? which would then shift the burden to Plaintiff?s counsel to determine if the ESI produced was over or under inclusive; Court specifically held that ?the court may consider the cost of review of ESI for privileged or responsive information in deciding whether discovery imposes an undue burden or cost on a responding party. Furthermore if the court were inclined to limit discovery based on the burden or cost of the review, I hold that the court could shift the costs of that review, either in whole or in part, to the requesting party.?

Nature of Case: Class action based on alleged entitlement to royalty payments

Electronic Data Involved: Emails, ESI

United States v. Warner, No. C 11-04181 LB, 2012 WL 6087193 (N.D. Cal. Dec. 6, 2012)

Dec 01 2012

Key Insight: Where plaintiff sought the government?s production of all communications between himself and the government, all documents concerning its debt collection policies, and information related to the government?s debt collection efforts related to his debt, the court found that the government?s burden argument was unpersuasive where it lacked specific information to support the claim and where, pursuant to the factors in Rule 26(b)(2)(C)(iii), the burden did not outweigh the benefit of the requested discovery

Nature of Case: Student loan debt collection

Electronic Data Involved: ESI

Norfolk S. Railway Co. v. Hartry, 316 Ga. App. 532 (Ga. Ct. App. June 29, 2012)

Dec 01 2012

Key Insight: Where relevant data could only be viewed using particular software, a license for which would cost $500, the trial court ordered Norfolk Southern to provide the data to Plaintiff ?in some useable form ? either by obtaining permission from [the owner of the software] to produce the data ?, by providing [Plaintiffs] with a computer with the necessary software? or by any other method the parties agreed to. On appeal, the court found no abuse of discretion, ?especially given the crucial nature of the evidence, the relatively minor cost of the license when compared to the amount at stake in the lawsuit, and the fact that it was Norfolk Sothern?s decision to equip its locomotives? with a recording device from which it could provide data to a third party only upon payment of a licensing fee.

Nature of Case: Personal injury arising from collision between train and tractor trailer

Electronic Data Involved: Event data recorder

King v. Rozek Co., No. 11-cv-01685-CMA-MJW, 2012 WL 2884788 (D. Colo. July 13, 2012)

Dec 01 2012

Key Insight: Where, based on discrepancies in certain witnesses? testimony, Plaintiff believed that relevant investigation notes/computer journal entries were created on a date later than the date alleged by the defendant, and where the creation date was relevant to the issues in the case, the court granted plaintiff?s motion to compel a forensic investigation of the computer on which the evidence was created, but sua sponte issued a protective order that would allow Plaintiff?s forensic investigator to make a mirror image of the at-issue computer but would limit his investigation to the question of when the notes were made or modified and which prohibited the investigator from accessing or viewing information not relevant to that discreet issue

Nature of Case: Employment Discrimination

Electronic Data Involved: Computer hard drive

Scott Process Sys., Inc. v. Mitchell, No. 2012CV00021, 2012 WL 6617363 (Ohio Ct. App. Dec. 17, 2012)

Dec 01 2012

Key Insight: Trial court abused discretion in granting motion to compel forensic imaging of third party?s devices where the record did not present a history of discovery violations or non-compliance sufficient to justify such intrusion and where the court?s order permitted ?unfettered forensic imaging? and contained none of the protections required to conduct forensic analysis (e.g., a neutral third-party examiner, production to counsel for privilege review prior to production to opposing counsel, etc.)

Nature of Case: Violation of non-compete

Electronic Data Involved: Forensic imaging

McNulty v. Reddy Ice Holdings, Inc., 2011 116892 (E.D. Mich. Jan. 13, 2011)

Dec 01 2011

Key Insight: Where defendant preserved 4 terabytes of electronically stored information and 744 boxes of paper documents to be reviewed for production, court cited Rule 26(b)(2)(B) for the proposition that burdensome discovery should be limited but found that plaintiff had good cause for requesting relevant information and ordered the parties to meet and confer to develop search terms or objective search criteria for identifying responsive ESI as well as to develop a search plan for the hard copy

Nature of Case: RICO

Electronic Data Involved: ESI, hard copy

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)

Dec 01 2011

Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance footage

Lowy v. Peacehealth, 247 P.3d 7 (Wash. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court reinstated original order compelling defendants? to search its quality assurance database for records pertaining to incidents similar to plaintiff?s and denied defendants? motion for a protective order where RCW 70.41.2003 prevents defendants? from allowing a review of such records by ?outside persons? but where an internal review for the purpose of identifying responsive records would not be in violation of the statute

Nature of Case: Medical malpractice

Electronic Data Involved: Information related to claims similar to plaintiff’s

Tag:Motion for Protective Order