Motion for Protective Order – Page 9 – Electronic Discovery Law

Pick v. City of Remsen, No. C 13-4041-MWB, 2014 WL 458732 (N.D. Iowa Sep. 15, 2014)

Dec 01 2014

Key Insight: District court affirmed magistrate judge’s order granting defendants’ motion for order requiring destruction of inadvertently-produced privileged email, rejecting plaintiff’s various objections and finding no clear error in magistrate judge’s application of five-step “middle of the road” analysis set forth in Hydroflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993) which considerations include: (1) reasonableness of precautions, (2) number of inadvertent disclosures, (3) extent of the disclosures, (4) timeliness of rectifying measures, and (5) overriding interest in justice

Nature of Case: Libel, slander, wrongful termination

Electronic Data Involved: Privileged email

Illiana Surgery and Med. Care Ctr. LLC v. Hartford Fire Ins. Co., NO. 2:07 cv 3, 2014 WL 1094455 (N.D. Ind. Mar. 19, 2014)

Dec 01 2014

Key Insight: Following evaluation of the relevant eight part test, court declined to shift the costs of producing emails stored on Defendant?s backup system pursuant to Rule 26(b)(2)(B) (inaccessible data) but placed limitations on the discovery allowed and ordered Defendant to restore eight weeks of backup tapes at its own expense and to search them for the requested emails and invited Plaintiff to renew its motion if, after Defendant?s search was complete, it could show that ?further exploration? was necessary

Nature of Case: Insurance Litigation

Electronic Data Involved: Emails stored on backup tapes

Koninklijke Philips N.V. v. Hunt Control Sys., No. 11-3684 DMC, 2014 WL 1494517 (D.N.J. Apr. 16, 2014)

Dec 01 2014

Key Insight: Where Defendant sought to take a 30(b)(6) deposition to inquire regarding whether Plaintiff was ?using the appropriate search tools for ESI discovery,? based on Defendant?s expert?s determination that Plaintiff had ?some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools? and the assertion that ?Philips refuses to use these tools? and where Plaintiff indicated that it had always used ?a custodian-based approach to collecting ESI[ ],? and that it outsourced its collection to Microsoft Online Services and did not have a contract that permitted the type of searching and collecting suggested by the defendant, the court found that Plaintiff had adequately established the reasonableness of its approach and also reasoned that while the deposition itself would not be a burden, it would open the door to potentially burdensome additional discovery that was unlikely to be productive and thus was not warranted

Nature of Case: Appeal of decision of Trademark Trial and Appeal Board

Electronic Data Involved: ESI

Kinetic Concepts, Inc. v. Wake Forest Univ. Health Sciences, No. SA-11-CV-163-XR, 2014 WL 1787813 (W.D. Tex. May 5, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order barring defendants from obtaining CEO’s e-mails during discovery, finding that CEO had potentially relevant information that defendants might not be able to obtain from other custodians and that CEO’s high level role did not make discovery of his e-mails any more or less burdensome than producing e-mails of other executives

Nature of Case: Patent infringement

Electronic Data Involved: E-mail of CEO who joined plaintiff after lawsuit was filed

In re Indeco Sales, Inc., No. 09-14-00405-CV, 2014 WL 5490943 (Tex. App. Oct. 30, 2014)

Dec 01 2014

Key Insight: Ruling on petition for writ of mandamus, state appellate court found that trial court did not abuse its discretion in denying defendants’ motion to compel: (1) production of plaintiff’s cell phone for forensic examination and data extraction (to retrieve stored and deleted photographs and videotapes depicting plaintiff subsequent to accident, stored and deleted text messages, emails and audio recordings referencing or reflecting plaintiff’s alleged depression, etc.) and (2) production of information, data, posts and conversations from plaintiff’s Facebook page, because the requests were not properly limited in time and scope, were overly broad and could have been more narrowly tailored, and constituted an unwarranted intrusion

Nature of Case: Personal injury claims stemming from motor vehicle accident

Electronic Data Involved: Data stored on plaintiff’s cell phone; and information, data, posts and conversations from plaintiff’s Facebook page

Zeller v. S. Cent. Emergency Med. Servs., No. 1:13-CV-2584, 2014 WL 2094340 (M.D. Pa. May 20, 2014)

Dec 01 2014

Key Insight: Court ruled that plaintiff was entitled to a “first review” of results of independent forensic examination of plaintiff’s email account, and that plaintiff and defendants would share equally in cost of restoring and searching plaintiff’s emails, up to a maximum contribution by plaintiff of $1,500

Nature of Case: Family and Medical Leave Act claims

Electronic Data Involved: Plaintiff’s emails

Baker v. Bayer Healthcare Pharm., Inc., No. 13-cv-00490-THE (KAW), 2014 WL 5513854 (N.D. Cal. Oct. 31, 2014)

Dec 01 2014

Key Insight: Finding that sales call notes that plaintiff sought, as opposed to only those concerning plaintiff’s healthcare provider, were relevant, but agreeing that producing all sales call notes for tens of thousands of healthcare providers was unduly burdensome and disproportionate to the needs of this single-plaintiff case, court sought to strike a balance between plaintiff’s entitlement to information relevant to her claims and need to ease defendant’s burden of production, and ordered production of sales call notes that had already been produced in related multidistrict litigation involving over 1,500 plaintiffs; court noted that production in related MDL was limited to the plaintiffs? specific prescribing physicians but that the volume that production would yield would give plaintiff a substantial cross-section of sales call notes without burdening defendant with production of sales call notes for every physician in every market in which the device was promoted

Nature of Case: Single-plaintiff products liability lawsuit

Electronic Data Involved: Databases containing sales call notes from conversations between defendant’s sales representatives and healthcare providers

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production

Nature of Case: Breach of fiduciary duties, negligence

Electronic Data Involved: ESI

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Dec 01 2014

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

JPMorgan Chase Bank, N.A., v. East-West Logistics, LLC, No. 1-12-1111, 2014 WL 1292905 (Ill. App. Ct. Mar. 31, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion when it ordered defendant to pay $3,026 of plaintiff’s requested $18,771 electronic discovery costs, as court had discretion under court rule to issue a protective order as justice required, had ordered the parties to confer on the scope of production and reserved the allocation of costs, and had properly balanced defendant’s need for the discovery material against the expense of the production incurred by plaintiff

Nature of Case: Action to collect amounts due under credit agreement and enforce guaranty

Electronic Data Involved: Electronically stored documents

Tag:Motion for Protective Order