Motion to Compel – Page 115 – Electronic Discovery Law

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Manning v. Gen. Motors, 2007 WL 4246047 (D. Kan. Dec. 4, 2007)

Dec 01 2007

Key Insight: Although court found it ?difficult to imagine? that defendant did not possess any responsive electronic or paper documents, plaintiff submitted no information upon which to question defendant?s representation and court had no basis to compel production; court instead required defendant to supplement discovery responses unconditionally representing that no responsive documents were in its possession, custody or control

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic records identifying vacant positions at GM plant

Vaughn v. City of Puyallup, 2007 WL 3306743 (W.D. Wash. Nov. 6, 2007)

Dec 01 2007

Key Insight: Where plaintiff contended that defendant had not thoroughly searched its electronic storage network or devices for relevant documents, court denied plaintiff?s request to compel defendant to conduct and document a further comprehensive search since plaintiff failed to cite authority for proposition that court should enforce plaintiff?s subjective notion of how defendant should conduct discovery: ?Defendant is under a duty to produce all relevant documents. Defendant is not under a duty to comply with every discovery procedure requested by Plaintiff.?

Nature of Case: Wrongful discharge

Electronic Data Involved: Electronic documents

Member Servs., Inc. v. Sec. Mut. Life Ins., 2007 WL 2907520 (N.D.N.Y. Oct. 30, 2007)

Dec 01 2007

Key Insight: Court ordered defendant to produce highly relevant source code in electronic format subject to protective order in place and agreement by expert that he not share the information with others, including the plaintiffs, notwithstanding prior production in hard copy format

Nature of Case: Copyright infringement, breach of fiduciary duty, breach of contract, unfair trade practices

Electronic Data Involved: Source code

MGP Ingredients, Inc. v. Mars, Inc., 2007 WL 3010343 (D. Kan. Oct. 15, 2007)

Dec 01 2007

Key Insight: Where parties had no prior agreement about the manner in which documents and ESI were to be produced and plaintiff did not specify format in requests for production, court found that defendants had the right under Rule 34 to choose the option of producing their documents and ESI as kept in the usual course of business and declined to order defendants to identify by Bates Numbers the documents and ESI that were responsive to each particular request for production

Nature of Case: Patent infringement, misappropriation of trade secrets, tortious interference, and breach of contract

Electronic Data Involved: Documents and ESI

3M Co. v. Kanbar, 2007 WL 2972921 (N.D. Cal. Oct. 10, 2007)

Dec 01 2007

Key Insight: Where responsive emails which had been inadvertently omitted from initial production as a result of human error in manual search were promptly produced after being mentioned in deposition, court ordered defendant to submit a declaration certifying that all non-privileged documents had been produced and detailing what defendants and their employees did to ensure a complete production

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Benton v. Dlorah, Inc., 2007 WL 3231431 (D. Kan. Oct. 30, 2007)

Dec 01 2007

Key Insight: Magistrate judge ordered plaintiff to produce responsive emails, and if emails had been deleted, to produce for inspection her computer hard drive from which those emails were sent to allow defendants to use services of computer forensic specialist, if necessary, to retrieve them; request for sanctions denied without prejudice to a further request for a ?negative inference instruction? to be determined by trial judge

Nature of Case: Employment discrimination

Electronic Data Involved: Deleted email, hard drive of plaintiff’s personal computer

Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D. Cal. Sept. 18, 2007)

Dec 01 2007

Key Insight: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct

Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud

Electronic Data Involved: Email and other electronic documents

Kelly v. Montgomery Lynch & Assocs., Inc., 2007 WL 4412572 (N.D. Ohio Dec. 13, 2007)

Dec 01 2007

Key Insight: Where defendant produced no evidence or description of its attempt to engage in a “reasonable inquiry” under FRCP 26 to discover and produce the requested information, other than the general observation that finding the information would be difficult, and where issue of numerosity was important issue for class certification, court ordered defendant to produce information and if it failed to immediately undertake good faith effort to do so, court would allow plaintiff and his counsel ?to inspect in a reasonable manner the Defendant’s files and records, including electronically stored information, on these issues?

Nature of Case: Putative class action alleging violations of Fair Debt Collection Practices Act

Electronic Data Involved: Information regarding number of individuals who received particular letter from defendant collection agency

Hsieh v. Nicholson, 2007 WL 2438315 (N.D. Cal. Aug. 23, 2007)

Dec 01 2007

Key Insight: Finding any request for spoliation sanctions unwarranted, court denied plaintiff’s motion to compel production of emails where defendant made adequate showing that, after reasonable search and inquiry, he was unable to locate requested emails, plaintiff submitted no contrary evidence, and plaintiff identified no flaws in defendant’s search methods

Nature of Case: Employment discrimination

Electronic Data Involved: Email plaintiff claimed was sent in 2000

Tag:Motion to Compel