Tag: Motion to Compel

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Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)
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State v. Cartwright, 336 Or. 408, 85 P.3d 305 (2004)
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Daewoo Elecs. Co. v. United States, 650 F. Supp. 1003 (Ct. Int’l Trade 1986)
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Med. Billing Consultants, Inc. v. Intelligent Med. Objects, Inc., 2003 WL 1809465 (N.D. Ill. Apr. 4, 2003)
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Williams v. DuPont, 119 F.R.D. 648 (W.D. Ky. 1987)
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Georgia Emission Testing Co. v. Reheis, 602 S.E.2d 153 (Ga. Ct. App. 2004)
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Rambus, Inc. v. Infineon Tech. AG, 222 F.R.D. 280 (E.D. Va. 2004)
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Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323 (10th Cir. 1981)
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Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)
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Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)

Key Insight: Emails exchanged between a narrow group of plaintiff corporate business’s non-attorney employees were protected from discovery by attorney-client privilege and work product doctrine; further, statements on plaintiff’s web site waived work product protection for affidavits described therein, but did not waive work product protection with respect to plaintiff’s recorded conversation with competitor’s former employees and email exchanges with them

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Email

State v. Cartwright, 336 Or. 408, 85 P.3d 305 (2004)

Key Insight: Concluding that defendant had a right to obtain audiotaped prior statements of witnesses for use in cross-examining the individuals whose statements were on the tapes, court noted in footnote: “The audiotapes at issue here are the functional equivalent of written statements. It would be a towering triumph of form over substance to hold that [defendant’s former employer’s] choice of an electronic, rather than a documentary, mode of preserving the witness’ statements puts the statements beyond the reach of a subpoena duces tecum.”

Nature of Case: Criminal sexual harassment

Electronic Data Involved: Audiotapes of witness’ statements made by defendant’s former employer

Daewoo Elecs. Co. v. United States, 650 F. Supp. 1003 (Ct. Int’l Trade 1986)

Key Insight: Zenith’s motion to compel granted, requiring production in usable form of SAS data sets, constituting final refined forms of data used to compute final results; court criticized government’s inordinately restrictive interpretation of its discovery obligations: “To say that the data sets into which the computer tapes were transferred are not governed by an order speaking of computer tapes is as if someone had said at the dawn of the era of typewriters that typed documents are not governed by a court order speaking of ‘writings.'”

Nature of Case: Proceeding to review Dept. of Commerce’s review of antidumping duty order regarding television sets

Electronic Data Involved: Data sets

Med. Billing Consultants, Inc. v. Intelligent Med. Objects, Inc., 2003 WL 1809465 (N.D. Ill. Apr. 4, 2003)

Key Insight: Court denied plaintiff’s motion to compel defendants to allow experts to perform physical inspection of their computer equipment and files, since full disclosure of email had been provided by defendants and inspection was likely to be unduly burdensome

Nature of Case: Copyright infringement

Electronic Data Involved: Defendant’s computer equipment and files

Williams v. DuPont, 119 F.R.D. 648 (W.D. Ky. 1987)

Key Insight: Employer entitled to discover, at its own expense, copies of database on computer disk, code books and user manual created by EEOC’s expert from information produced by employer to allow for effective cross-examination of EEOC’s expert; in addition, employer to pay “fair portion of the fees and expenses incurred” in the past by EEOC for the expert’s work in encoding the requested data and formulating the database

Nature of Case: Consolidated Title VII action brought by individual and EEOC

Electronic Data Involved: Database created by EEOC’s expert from information produced by employer

Georgia Emission Testing Co. v. Reheis, 602 S.E.2d 153 (Ga. Ct. App. 2004)

Key Insight: Trial court abused its discretion in ordering parties to share costs of requested discovery equally, and should have ordered the requesting party to bear full cost where requested information should have been available in the requesting party?s own records, and the request involved the creation of a report that otherwise did not exist, and had to be specially created by a nonparty contractor at significant cost

Nature of Case: Suit to recover fees improperly assessed pursuant to Motor Vehicle Emission Inspection and Maintenance Act

Electronic Data Involved: Special report extracted from massive database of information

Rambus, Inc. v. Infineon Tech. AG, 222 F.R.D. 280 (E.D. Va. 2004)

Key Insight: Based on in camera review, court granted defendant’s motion to compel based on the crime/fraud exception to the attorney-client privilege, ordered production of other documents on same subject matter and further ruled that discovery would be allowed regarding documents produced and on the issue of sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Email, backup tapes

Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323 (10th Cir. 1981)

Key Insight: Subpoena seeking non-party’s software trade secrets enforced since trade secrets were relevant and necessary to patent suit and need for information outweighed possible injury to third party

Nature of Case: Patent infringement

Electronic Data Involved: Software trade secrets of third party

Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)

Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”

Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)

Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data

Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)

Key Insight: Email stored in government computers does not automatically become public records by virtue of that storage; private or personal email fell outside the statutory definition of “public records”

Nature of Case: Newspaper sued city to release as public record all email sent from or received by two city employees

Electronic Data Involved: Email

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