Motion to Compel – Page 107 – Electronic Discovery Law

Brokaw v. Salt Lake County, 2008 WL 5449065 (D. Utah Dec. 30, 2008)

Dec 01 2008

Key Insight: Despite court?s acknowledgment of the requested data?s relevance, plaintiff?s offer to provide a technical expert to perform the search, and plaintiff?s proffer of at least three alternative search protocols, court denied plaintiff?s motion to compel a school district to search for specified terms in the databases of all its schools where court found that the proposed discovery imposed an excessive burden due to the district?s lack of technical resources and where plaintiff?s proposals failed to sufficiently lessen that burden

Nature of Case: Complaint alleges unreasonable seizure of high school student and use of excessive force resulting in permanent injuries

Electronic Data Involved: Computer databases at all school’s in district

Flying J, Inc. v. TA Operating Corp., 2008 WL 5449714 (D. Utah Dec. 31, 2008)

Dec 01 2008

Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order

Nature of Case: Unlawful conspiracy to prevent and suppress competition

Electronic Data Involved: ESI on back up tapes

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2008 WL 5479701 (M.D. Fla. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where documents produced by plaintiffs had been printed into hard copy and then scanned into electronic format and produced on CD, Special Master found that documents had not been produced as they were kept in the ordinary course of business pursuant to Rule 34 and recommended plaintiffs be ordered to produce an index identifying documents responsive specifically to moving party?s requests; court adopted Special Master?s recommendation in subsequent opinion, 2008 WL 5120696 (M.D. Fla. Dec. 4, 2008)

Nature of Case: Insurance coverage and related claims

Electronic Data Involved: Email, unspecified ESI

New Albertsons Inc. v. Superior Court, 86 Cal. Rptr. 3d 457 (Cal. Ct. App. 2008)

Dec 01 2008

Key Insight: Court issued writ of mandate vacating award of sanctions against defendant for spoliation of video and photographic evidence where trial court had no statutory or inherent authority to order sanctions absent defendant?s violation of a court order or sufficiently egregious or exceptional circumstances and, where by failing to timely move to compel further response upon Albertson?s alleged deficient production, plaintiffs waived their rights to do so

Nature of Case: Negligence and premises liability

Electronic Data Involved: Video and photographic evidence

Orbit One Commc?ns, Inc. v. Numerex Corp., 2008 WL 4778133 (S.D.N.Y. Oct. 31, 2008)

Dec 01 2008

Key Insight: Where defendant/successor corporation acquired computer and server utilized by plaintiff/predecessor corporation in pre-acquisition operation of predecessor company but plaintiff asserted privilege as to certain pre-acquisition documents in response to subpoena from defendant, court ruled documents were protected by privilege, despite presence on acquired hardware, where plaintiff removed allegedly privileged and personal documents prior to defendant?s access and control of hardware and thus had a reasonable expectation of privacy; court ordered production of non-privileged materials and categorical privilege log and declined to sanction plaintiff for removal of documents from acquired hardware where plaintiff acted to preserve the documents and agreed to produce non-privileged material

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Superior Prod. P?ship d/b/a/ PBSI v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D. Ohio Dec. 2, 2008)

Dec 01 2008

Key Insight: Court ordered electronically stored documents produced in native format in light of preference for such production in Rule 26 and where no obstacles to production were articulated; where plaintiff requested production of large volume of relevant documents and where deposition witness indicated that the information would be easily retrieved from defendant?s electronic database, court recognized potential burden to defendant and ordered production of sampling of documents to allow for determination of the need to produce the rest; court also ordered parties to meet and confer regarding the necessary volume of production of documents related to cost where documents were necessary to address the accuracy of previously produced summary and thus production of all such documents was not required, where information was available in electronic format, though, defendants were ordered to produce it

Nature of Case: Predatory pricing

Electronic Data Involved: ESI

Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355 (2008)

Dec 01 2008

Key Insight: Court denied (in part) motion for writ of mandamus to vacate trial court?s order compelling production of ?all documents regarding the relationship between Nationwide and its counsel? where Nationwide failed to show that the information was ?patently irrelevant,? as required, and where the court opined that the information was accessible through its counsel and was thus unpersuaded that production would be arduous; court granted motion (in part) and directed trial court to vacate order compelling production of all electronic communications with counsel where court found that communications occurring after denial of coverage were within period in which litigation was anticipated and were therefore privileged

Nature of Case: Breach of insurance contract

Electronic Data Involved: Email, ESI regarding relationship with counsel

Overlap Inc. v. Alliance Bernstein Invs., Inc., 2008 WL 5780994 (W.D. Mo. Dec. 29, 2008)

Dec 01 2008

Key Insight: Court found defendant failed to establish burden of proving ESI was not reasonably accessible where testimony established the relevant computer system could b searched in-house with ?minimal? time spent and ordered defendant to search for and produce the information requested and to bear the associated costs; court ordered search of backup tapes without deciding the issue of reasonable accessibility where plaintiff established ?good cause? for why the tapes should be searched and ordered defendants to search for and produce the information requested and to bear the associated costs

Nature of Case: Breach of contract/warranty

Electronic Data Involved: ESI

In re Fischer Advanced Composite Components AG, 2008 WL 5210839 (W.D. Wash. Dec. 11, 2008)

Dec 01 2008

Key Insight: Citing its discretion pursuant to U.S.C. ? 1782, court declined to compel production of requested communications from parent corporation for use in foreign jurisdiction where court found the information sought was in the possession of a party to the action in the foreign jurisdiction and that to compel production of such information would be ?burdensome and duplicative?

Nature of Case: Breach of contract and tortious intimidation (proceedings initiated in foreign jurisdiction)

Powell v. Sharpsburg, 2008 WL 5422577 (E.D.N.C. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where defendant willfully destroyed relevant work orders pursuant to its document retention policy but where defendant should have been aware of the relevance of the documents and the resulting duty to preserve, court ordered adverse inference in favor of plaintiff and prohibited defendants from introducing secondary evidence of contents of spoliated documents

Nature of Case: Title VII action for discriminatory discipline based on race

Tag:Motion to Compel