Tag: Motion to Compel

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Ex Parte Wal-Mart, Inc., 809 So.2d 818 (Ala. 2001)
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In re Gabapentin Patent Litig., 214 F.R.D. 178 (D.N.J. 2003)
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Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F. Supp. 2d 561 (N.D. Tex. 2003)
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Harvey v. Allstate Ins. Co., 2004 WL 3142228 (W.D. Tenn. Aug. 23, 2004)
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Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp., 2002 WL 31729693 (S.D.N.Y. Dec. 5, 2002)
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Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)
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S. Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002)
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Cummings v. Gen. Motors Corp., 365 F.3d 944 (10th Cir. 2004)
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McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 2001 WL 536974 (10th Cir. May 21, 2001)
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Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Positive Software Solutions, Inc. v. New Century Mortgage Corp., 259 F. Supp. 2d 561 (N.D. Tex. 2003)

Key Insight: Court entered preservation order requiring preservation of all extant backups or images of all servers or personal computers containing disputed software or email; court denied motion to compel imaging of all media potentially containing software or electronic evidence relevant to the claims in the suit, and all images of defendants’ computer storage facilities, drives and servers taken to date, as substantially overbroad

Nature of Case: Copyright infringement

Electronic Data Involved: Backups and images of servers, software and email

Harvey v. Allstate Ins. Co., 2004 WL 3142228 (W.D. Tenn. Aug. 23, 2004)

Key Insight: Court ordered defendant to supplement interrogatory response where deposition testimony showed that some of the information sought in the interrogatory could be obtained from a simple computer operation

Nature of Case: Insured alleged that insurer’s denial of claim violated 42 U.S.C. ? 1981

Electronic Data Involved: Computerized claim file information

Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp., 2002 WL 31729693 (S.D.N.Y. Dec. 5, 2002)

Key Insight: Various emails among claims handlers, supervisors, in-house counsel and outside counsel were protected from discovery by either attorney-client privilege, work product doctrine, or both; however, voluntary production of certain emails waived protections; inadvertent disclosure may waive protections if reasonable precautions were not taken to guard against inadvertent disclosure

Nature of Case: Insurance coverage

Electronic Data Involved: Email

Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)

Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”

Nature of Case: Valuation dispute arising as result of two merger agreements

Electronic Data Involved: Email stored on monthly backup tapes

S. Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002)

Key Insight: Appellate court granted writ and quashed trial court’s order granting party’s motion for leave to inspect non-party’s computer system; remanded with directions to trial court to craft a narrowly-tailored order that sets parameters and limitations on the inspection

Nature of Case: Insurance bad faith

Electronic Data Involved: Computer system; records of payments to physicians

Cummings v. Gen. Motors Corp., 365 F.3d 944 (10th Cir. 2004)

Key Insight: No abuse of discretion to deny motion to compel access to GM’s databases and grant protective order to GM where plaintiffs’ proposed computer database searches were overly broad in scope, duplicative of prior requests and unduly burdensome

Nature of Case: Personal injury

Electronic Data Involved: Database

McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 2001 WL 536974 (10th Cir. May 21, 2001)

Key Insight: Defendant’s skepticism that plaintiff had not produced copies of all responsive documents did not entitle defendant to conduct physical inspection of plaintiff’s hard drives

Nature of Case: Breach of contract and quantum meruit claim

Electronic Data Involved: Computer and disc drives

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Key Insight: Court created its own eight-factor test by adding one more factor to the Zubulake seven-factor test, and determined that cost-shifting was appropriate (responding party 25% and requesting party 75%)

Nature of Case: Sexual harassment

Electronic Data Involved: Email stored on backup tapes

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