Motion for Protective Order – Page 15 – Electronic Discovery Law

State v. Johnson, 2010 WL 1424369 (Ariz. Ct. App. Apr. 8, 2010)

Dec 01 2010

Key Insight: Appellate court affirmed trial court?s dismissal of charges related to defendant?s alleged possession of child pornography where FBI refused to follow the trial court?s order to produce a copy of the relevant hard drive to defendant?s expert, pursuant to the terms of a protective order, and where defendant made a ?substantial showing? that reproduction of the drive was required for the effective investigation of his defense because the FBI?s proffered solution of allowing defendant?s expert to analyze the drive at the FBI?s offices did not properly address defendant?s concerns about the privacy of his expert?s work or the deprivation of the expert?s references and resource which were not available at the proposed location

Nature of Case: Sexual exploitation of a minor

Electronic Data Involved: Hard Drive

Maldonado v. Union Pac. R.R. Co., 2010 WL 1980319 (D. Kan. May 18, 2010)

Dec 01 2010

Key Insight: Court denied motion for a protective order preventing disclosure of the video of defendant?s train colliding with plaintiffs? car where defendant?s concerns about video manipulation or commercial exploitation was unwarranted and unsupported by evidence beyond speculation; court ordered production of event recorder data for a relevant time period and, because of the need for proprietary software to analyze the data, ordered defendant to either secure permission for plaintiff to utilize the software independently and produce the data and software outright or make the data and software available at a mutually agreeable time and place for plaintiff?s evaluation

Nature of Case: Claims arising from train vs. car collision

Electronic Data Involved: Video of collision & event recorder data and related software

Universal Del. v. Comdata Corp., 2010 WL 2330284 (E.D. Pa. June 4, 2010)

Dec 01 2010

Key Insight: Defendant?s motion for a protective order precluding compliance with plaintiff?s? subpoena duces tecum was denied where defendant failed to establish the irrelevance of the data sought and failed to establish the unduly burdensome nature of producing the information requested or to assert that the information was not reasonably accessible and where the court determined that an existing protective order was sufficient to protect any confidential information produced

Nature of Case: Antitrust litigation

Electronic Data Involved: Emails, ESI, hard copy

CE Design Ltd. v. Cy?s Crabhouse N., Inc., 2010 WL 2365162 (N.D. Ill. June 11, 2010)

Dec 01 2010

Key Insight: Where defendant alleged plaintiff had violated the protective order by using information contained on a hard drive and backup tapes provided by a third party to initiate additional lawsuits, court denied defendant?s motion to dismiss absent evidence of prejudice but granted third party?s motion for protective order preventing such use going forward; for plaintiff?s failure to supplement discovery, court denied motion for dismissal but gave permission for defendant?s expert to supplement report based on newly-obtained information

Nature of Case: Violation of Telephone Consumer Protection Act

Electronic Data Involved: ESI contained on hard drive, backup tapes

Jicarilla Apache Nation v. United States, 93 Fed. Cl. 219 (Fed. Cl. 2010)

Dec 01 2010

Key Insight: Pursuant to Fed. R. Evid. 502(d), court entered protective order controlling the scope and production format of ESI as well as establishing that inadvertent disclosure would not result in the waiver of attorney-client privilege or work-product protection and establishing a protocol for how to notify opposing counsel of inadvertent production and counsel?s appropriate response

Nature of Case: Tribal trust case

Electronic Data Involved: ESI

In re Sawstop Cases, 2010 WL 2483316 (D. Mass. June 14, 2010)

Dec 01 2010

Key Insight: Court ordered plaintiffs? production of cartridges containing relevant data (?akin to a ?black box??) that were relied upon by their expert in forming his opinions but found both parties proposed protective measures insufficient and ordered defendants to designate an expert or experts to review the cartridges, restricted access to the cartridges to defendants? expert(s) and counsel and their employees ?whose functions required access to the cartridge or cartridge information?, and ordered that each expert sign an agreement that they would not seek to develop technology similar to that at issue

Electronic Data Involved: Cartridge data “akin to a black box”

Interserve, Inc. v. Fusion Garage, Ltd., 2010 WL 3931100 (N.D. Cal. Oct. 6, 2010)

Dec 01 2010

Key Insight: Where the court found that defendant?s source code?s metadata ?(i.e. programmer?s notes or comments and other annotations in the source code) ? may be relevant to [plaintiff?s] claims,? the court ordered defendant to produce the metadata but indicated that it could redact the actual source code from the production and produce the metadata subject to the parties? stipulated protective order

Nature of Case: Misappropriation of business ideas, false advertising, breach of fiduciary duty, fraud

Electronic Data Involved: Metadata for source code ?(i.e. programmer?s notes or comments and other annotations in the source code)”

Jones v. Comsys IT Partners, Inc., 2010 WL 3002083 (W.D.N.C. July 27, 2010)

Dec 01 2010

Key Insight: Where in response to plaintiff?s motion for a protective order requiring the preservation of relevant emails defendants affirmed they had been preserving relevant evidence and would continue to do so, the court denied plaintiff?s motion as moot

Electronic Data Involved: Emails

Fleming v. Escort, Inc., 2010 WL 3833995 (D. Idaho Sept. 24, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought the unredacted source code of defendant?s allegedly infringing products, the court credited plaintiff?s expert testimony that because source code ?generally contains notes by the writer of that code ?that explain to others who come later what the [writer] of the code was trying to accomplish at that portion of the code??, all of the source code was necessary to ensure his correct understanding of all portions and ordered plaintiff to produce the source code pursuant to the parties protective order; in so holding, court noted that ?the dilemma? of having to produce source court for unrelated products was of defendant?s ?own making? because of its business practice of bundling the source code for all of its products together

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Jeanes-Kemp, LLC v. Johnson Controls, Inc., 2010 WL 3522028 (S.D. Miss. Sept. 1, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for protective order as to two inadvertently produced privileged documents where the production was inadvertent, where discovery was reviewed by three attorneys prior to production and thus efforts to prevent disclosure were reasonable, and where upon notice of disclosure, counsel took immediate steps to retrieve the documents; court declined to sanction defense counsel for threatening use of the inadvertently disclosed documents where plaintiff?s motion for protective order was granted and where defendants had not yet had the opportunity to use the documents as threatened

Electronic Data Involved: Inadvertently produced emails

Tag:Motion for Protective Order