Motion to Compel – Page 128 – Electronic Discovery Law

Discover Fin. Servs., Inc. v. Visa U.S.A., Inc., 2006 WL 3230157 (S.D.N.Y. Nov. 8, 2006)

Dec 01 2006

Key Insight: Court ruled that American Express would be allowed to conduct a Rule 30(b)(6) deposition to address the topics of Wells Fargo’s document retention, collection and production efforts in the litigation, but that such deposition would be limited to three hours; court further noted: “American Express and Wells Fargo have each declined to produce certain information, for example, the content of their ‘litigation hold’ notices. In such situations, it is unlikely that I would compel one party to produce such information, unless American Express and all of the Bank Defendants stipulate to simultaneous exchange of all their information concerning a given topic.”

Nature of Case: Antitrust

Electronic Data Involved: Legal hold notices

Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful

Nature of Case: Patent infringement

Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery

Optowave Co., Ltd. v. Nikitin, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where, despite repeated warnings not to destroy relevant evidence, defendant allowed another party to reformat hard drives of his employees’ computers without first preserving relevant files contained on computers to be reformatted, resulting in loss of crucial electronic evidence, court found that adverse inference instruction was appropriate sanction

Nature of Case: Breach of contract

Electronic Data Involved: Email and customer files

TIG Ins. Co. v. Premier Parks, Inc., 2005 WL 468300 (Del. Super. Ct. Mar. 1, 2005) (Unpublished)

Dec 01 2005

Key Insight: Where insurer, in course of attempting to comply with discovery order, realized it had no electronic mechanism to retrieve case files based on whether a class was certified, but it could sort files by amount expended, court modified discovery order because it would have inflicted a substantial burden upon the insurer and the information produced would almost certainly be irrelevant

Nature of Case: Park operator alleged insurer failed to provide adequate counsel to defend a class action discrimination suit

Electronic Data Involved: Case file data

Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005)

Dec 01 2005

Key Insight: Court ordered plaintiff to produce all materials that plaintiff’s counsel furnished to plaintiff’s testifying expert, regardless of privilege or claimed work product protection, including emails, summaries, spreadsheets and draft expert reports

Nature of Case: Employer sought to enforce restrictive covenants against former employees

Electronic Data Involved: Emails, spreadsheets, draft expert reports

Harbuck v. Teets, 2005 WL 2510229 (11th Cir. Oct. 12, 2005)

Dec 01 2005

Key Insight: District court did not abuse its discretion where, in course of discovery dispute, it ordered both parties to submit their copies of data to the district court’s Information Technology personnel to see if the material could be retrieved, and denied plaintiff’s motion to compel when court’s personnel had no problems retrieving the data

Nature of Case: Employment discrimination

Electronic Data Involved: Email and electronic documents

Padilla v. Price Toyota, 2005 WL 6209494 (D.N.J. Oct. 28, 2005)

Dec 01 2005

Key Insight: Court granted plaintiffs? motion to compel production of vehicle?s ?black box? where information sought was not available elsewhere and was necessary for expert analysis of airbag system despite defendants? arguments that data was irrelevant and unreliable and that retrieving the data would be unduly expensive because of need for technician to travel cross-country; regarding unreliability, court noted that a Daubert motion was not precluded in future

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Vehicle’s “black box”

Fryer v. Brown, 2005 WL 1677940 (W.D. Wash. July 15, 2005)

Dec 01 2005

Key Insight: Noting that a responding party “must cover the costs of gathering the requested item; not to cover the costs of reproduction absent a showing of good cause as to why the burden should be shifted,” court instructed plaintiff to provide hard copies of its website as defendant had requested, at defendant’s expense

Nature of Case: Copyright and trademark infringement

Electronic Data Involved: Website pages

United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005)

Dec 01 2005

Key Insight: In connection with criminal defendant’s request for certain emails and correspondence, court held that the term “government” included all agencies and departments of the Executive Branch of the government and all subdivisions thereof and it was insufficient for Justice Department merely to state that certain documents were not in its possession and it was continuing to make inquiries; Justice Department ordered to immediately and by formal request in writing, demand that GSA conduct a thorough search and produce all relevant emails, including archived emails on employees’ hard drives

Nature of Case: Criminal prosecution for obstruction of justice

Electronic Data Involved: Email and archived email

Export-Import Bank of U.S. v. Asia Pulp & Paper Co., Ltd., 2005 WL 3078208 (S.D.N.Y. Nov. 17, 2005)

Dec 01 2005

Key Insight: Court allowed reopening of discovery and ordered plaintiff to produce former employee’s personal journals that were relevant to parties’ dispute, where former employee revealed existence of journals in deposition taken during last week of discovery; court further granted defendant leave to subpoena former employee directly in the event plaintiff was unable to take possession of the journals

Nature of Case: Action to recover promissory note debt

Electronic Data Involved: Former employee’s personal journal maintained on home computer

Tag:Motion to Compel