Motion to Compel – Page 104 – Electronic Discovery Law

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D. Fla. Dec. 17, 2008)

Dec 01 2008

Key Insight: Where plaintiff produced materials relied on by its expert on DVD in .sav format but defendants alleged it was inaccessible, court held that .sav format was a ?reasonably accessible format? and declined to compel re-production; court?s reasoning included consideration that .sav was format in which expert originally considered the information and evidence that .sav files could be opened by standard ?statistical computer packages?

Electronic Data Involved: ESI, “.sav” data

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 356928 (E.D. Pa. Feb. 7, 2008), modified, 2008 WL 724627 (E.D. Pa. Mar. 17, 2008)

Dec 01 2008

Key Insight: Where examination of defendants? hard drives and servers was only way to determine whether defendants had violated court order requiring them to locate any files taken from plaintiffs, return them to plaintiffs, and then purge plaintiffs? files from defendants? electronic storage devices, magistrate judge ordered defendants to produce forensic copies of hard drives and servers to plaintiffs? counsel on a ?Confidential-Designated Counsel Only? basis

Nature of Case: Misappropriation of trade secrets, unfair competition

Electronic Data Involved: Defendants’ hard drives and servers

In re Seroquel Prods. Liab. Litig., 2008 WL 508391 (M.D. Fla. Feb. 21, 2008)

Dec 01 2008

Key Insight: Court issued a number of discovery rulings, among them an order requiring AstraZeneca to produce communications between members of the Benefit/Risk Team for Seroquel; court reasoned: “Given the scope of this litigation, requiring a limited number (even 100) of known individuals to search for significant information is not an undue burden.”

Nature of Case: Drug product liability

Electronic Data Involved: Email

Melcher v. Apollo Med. Fund Mgmt. L.L.C., 859 N.Y.S.2d 160 (N.Y. App. Div. 2008)

Dec 01 2008

Key Insight: Where there was no proof that plaintiff intentionally destroyed or withheld evidence, plaintiff’s assistant testified that she searched his computers, and there was an adequate explanation for non-production of two items of correspondence, appellate court found trial court had improperly directed the cloning of plaintiff’s computer hard drives and reversed lower court’s order

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Computer hard drives

U.S. v. Two Bank Accounts, 2008 WL 2696927 (D.S.D. July 2, 2008)

Dec 01 2008

Key Insight: Where party initially told government he did not have certain computers used in various businesses discussed in complaint, then revealed that he possessed the computers but objected to providing them to government, and then admitted having removed hard drives and hiring third party to create a mirror images, court ruled that government was not bound to accept mirror image made by third party and ordered party to produce computers to government for inspection; court further ordered government to promptly create mirror image of hard drives and return computers promptly to party

Nature of Case: Forfeiture action

Electronic Data Involved: Hard drives of certain computers used in the transactions alleged in the complaint

Floyd v. City of New York, 2008 WL 4179210 (S.D.N.Y. Sept. 10, 2008)

Dec 01 2008

Key Insight: Where all information in particular NYPD database was relevant to plaintiffs? claims and not subject to law enforcement privilege, court granted plaintiffs? motion to compel production of data with exception of names of suspects and police officers and subject in part to protective order to be negotiated by parties or imposed by court

Nature of Case: Class action alleging defendants sanction a policy and practice of stop and frisks by the New York Police Department on the basis of race and ethnicity

Electronic Data Involved: NYPD database

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 4753358 (S.D. Fla. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendant produced electronic files in ?MAX format? with free ?Paperport? software to assist in its review but where plaintiff then expressed preference for hard copy documents and belief that electronic documents would cost triple the amount to review, court denied plaintiff?s motion to compel holding that defendants? production of files as kept in the usual course of business was sufficient; court also ruled that where plaintiff?s first request for documents did not specify production in electronic form, defendants need not reproduce hard copy documents electronically

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Gateway Senior Hous., Ltd. v. MMA Fin., Inc., 2008 WL 5142152 (E.D. Tex. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants? proffered explanations for the destruction of those hard drives was contradicted and ?lame? in light of defendants? knowledge of their relevance and its duty to preserve

Nature of Case: Breach of contract

Electronic Data Involved: ESI, emails, hard drives

Am. Mfr. Mut. Ins. Co. v. Payton Lane Nursing Home, 2008 WL 5231831 (E.D.N.Y. Dec. 11, 2008)

Dec 01 2008

Key Insight: Where plaintiffs? privilege log specified doc type, doc date, bates numbers, author, recipients and a document title but did not sufficiently describe the content of the document, court ordered production of proper log that must ?identify each document with specificity as is need to demonstrate the communication was made for the purpose of obtaining or providing legal services and that the communication was intended to be and was kept confidential.?

Electronic Data Involved: Privileged email and hard copy communications

Apsley v. Boeing Co., 2008 WL 191418 (D. Kan. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where structure of Boeing?s privilege log was result of the same emails (containing legal advice) being stored in more than one email file and/or legal advice being repeated in email strings, and Boeing listed all of the email messages by Bates number where legal communication was located, but redacted only the portion of the string that contained legal communications, court concluded that log adequately supported Boeing?s claim of privilege for multiple copies of the same communication, noting: ?The organization of a privilege log for electronic documents existing in multiple locations presents a challenge. Perhaps a better method would be to list the original legal communication by date, author and recipient and thereafter indicate that the other Bates-stamped documents are copies or a repeat of the original legal communication. However, electronic discovery is an evolving practice and Boeing will not be faulted for its efforts to organize the privilege log.?

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Tag:Motion to Compel