Motion to Compel – Page 105 – Electronic Discovery Law

Spieker v. Quest Cherokee, LLC, 2008 WL 4758064 (D. Kan. Oct. 30, 2008)

Dec 01 2008

Key Insight: Granting leave to refile, court denied plaintiff?s motion to compel production of emails for failure to show their relevance to class certification but rejected defendants? argument that $375,000 cost of production was unduly burdensome in light of amount in controversy where defendant argued claims of named plaintiffs were worth $100,000 or less but plaintiff argued claims of the class exceeded $5 million; court also stated that where defendant was in better position to identify search terms it should do so to reduce volume, that the cost of production versus the amount in controversy did not render email data ?not reasonably accessible,? and that parties should address Rule 502 in any future discussions regarding cost, among other things

Nature of Case: Class action for failure to pay royalties arising from oil and gas leases

Electronic Data Involved: Email

Verigy US, Inc. v. Mayder, 2008 WL 4786621 (N.D. Cal. Oct. 30, 2008) (Not for Citation)

Dec 01 2008

Key Insight: Where defendant failed to produce website information because the information was maintained by and in the custody of a third party internet service provider, and because defendant could not access the materials because its account had expired, court acknowledged general rule that ?production is not ordered unless the responding party has exclusive control of the documents? and plaintiff?s failure to subpoena third party directly but nonetheless ordered defendants to ?take all necessary steps to obtain the requested documents? from third party and for the parties to split the cost

Nature of Case: Misappropriate of trade secrets

Electronic Data Involved: Website

Mintel Int?l Group, Ltd. v. Neerghen, 2008 WL 4936745 (N.D. Ill. Nov. 17, 2008)

Dec 01 2008

Key Insight: Court declined to compel compliance with subpoena seeking forensic image of third-party competitor?s computer where third party asserted it had no relevant documents on its computers, where an expert?s search confirmed that assertion and where plaintiff failed to establish third party?s possession of documents sought; regarding plaintiff?s claim that defendant?s search was incomplete where it did not include titles or phrases from documents not included in the complaint, court ordered meet and confer regarding supplemental search terms and for third party to allow forensic expert to conduct search

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: ESI, hard drive

Bryant v. Gardner, 587 F. Supp. 2d 951 (N.D. Ill. 2008)

Dec 01 2008

Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution

Nature of Case: Wrongful termination, discrimination

Electronic Data Involved: Laptop

Moore v. Abbott Labs., 2008 WL 4981400 (S.D. Ohio Nov. 19, 2008)

Dec 01 2008

Key Insight: Where defendant produced relevant emails from targeted custodians but where plaintiff sought all emails mentioning his name and where additional searching would cost $300,000, court declined to compel production of additional emails; where emails were produced in hard copy and relevant metadata could not be seen, court ordered defendants to ?determine feasibility? of electronic production and to produce in electronic form ?absent unusual circumstances?; court denied motion to compel generally where plaintiff?s requests were overbroad and unreasonable in their scope

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2008 WL 4786671 (N.D. Cal. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendants failed to establish custodians? possession of relevant emails beyond speculation or vague assertions, and where responding party already produced ?voluminous amounts of email,? court declined to compel production of emails from either custodian

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: Emails

U.S. v. Treacy, 2008 WL 5062722 (S.D.N.Y. Nov. 24, 2008)

Dec 01 2008

Key Insight: Court declined to compel government to undertake ?seemingly redundant and unquestionably burdensome? search of 15 disks in witness?s possession where defendant failed to show that documents on disk materially varied from documents already searched and reviewed by government and where government had produced responsive documents discovered in that search pursuant to Rule 16 obligations

Nature of Case: Securities fraud and conspiracy

Electronic Data Involved: Computer disks

Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148 (Fla. Dist. Ct. App. 2008)

Dec 01 2008

Key Insight: Where trial court granted plaintiff access to all defendant?s databases, including an exclusively privileged database, based upon an unproven assumption regarding ease of production and upon defendant?s violation of a prior court order by failing to provide sufficient information regarding its search efforts, appellate court quashed order noting that defendant?s violations were correctable and non-prejudicial and thus could not justify invasion of the attorney-client privilege or work product

Nature of Case: Personal injury

Electronic Data Involved: Database

AIU Ins. Co. v. TIG Ins. Co., 2008 WL 5062030 (S.D.N.Y. Nov. 25, 2008)

Dec 01 2008

Key Insight: Court granted motion to compel additional electronic searching as to certain custodians where defendant established their potential relevance and where plaintiff failed to establish additional search would be unduly burdensome or that custodians had no relevance to litigation; court noted that plaintiff?s assertions that documents referencing custodians at issue were drafted before the popularization of email does not excuse obligation to search for potentially relevant materials even where the search may be ?fruitless?

Nature of Case: Breach of reinsurance contracts

Electronic Data Involved: ESI, email of particular custodians

In re Zurn Pex Plumbing Prod. Liab. Litig., 20008 WL 5104173 (D. Minn. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court compelled production of deponent to answer specifically tailored questions regarding retention of electronically stored documents where plaintiff suspected spoliation due to defendant?s failure to timely issue preservation notices and where inquiry into retention policies would assist in narrowing scope of discoverable electronic materials; court also compelled production of identity of author of relevant email

Nature of Case: Products liability

Electronic Data Involved: Document retention policies, email

Tag:Motion to Compel