Key Insight: ESI does not need to be produced if it is from sources not reasonably accessible on account of undue burden or cost.
Nature of Case: medical fees
Electronic Data Involved: medicare documents, etc
Keywords: undue burden, not reasonably accessible, third party requests
Key Insight: Judges should weigh lesser sanctions before dismissing a case, but are not required to.
Nature of Case: Breach of Contract, Torts
Electronic Data Involved: Tax and bank statements
Keywords: failure to respond, discovery sanctions, discovery misconduct
Key Insight: communications that occurred outside of the mediation but involve the mediator are not protected by the mediation privilege
Nature of Case: Insurance Bad Faith
Electronic Data Involved: documents used in mediation that Defendant claim to be protected by mediation privilege
Keywords: mediation privilege, reconsideration, under seal
Key Insight: Addressing Defendant?s request for forensic examination of Plaintiff?s computer as part of its Omnibus Discovery Motion, court noted Plaintiff?s testimony that her computer had crashed three times resulting in the loss of access to certain information, the fact that ?the majority? of Plaintiff?s work for Defendants was conducted remotely via computer, and the fact that Defendants were willing to pay for the examination, and concluded that Defendants had provided a ?legal basis justifying their request? but noted Defendant?s failure to provide sufficient information regarding the devices at issue, the identity or qualifications of the forensic expert or any details regarding the protocol or specifics of what to search for and thus denied the motion without prejudice
Nature of Case: Intentional and negligent infliction of emotional distress, sexual harassment, and retaliatory, wrongful termination, etc.
Electronic Data Involved: Forensic examination of computer
Key Insight: 4.2 million pages of keyword “”hit”” documents produced without review, but designated “”Attorney Eyes Only.
Nature of Case: unfair competition
Electronic Data Involved: 4.2 million pages of keyword “”hit”” documents
Key Insight: Defendant moved to compel Plaintiff to produce additional documents, supplement discovery responses, and remove non-responsive documents from their production. Plaintiff had not been able to obtain the entire underlying action file from former counsel, and argued they do not have actual control over the documents. The court found Plaintiffs did have ?possession, custody or control? of the file under Fed. R. Civ. P. 34 (even though counsel had not been cooperative in turning the materials over) and granted Defendant?s motion to compel production of additional non-privileged and responsive documents. Plaintiffs were ordered to obtain the file and provide supplemental responses to Defendant?s RFPs. Defendant asserted Plaintiff?s previous production was a ?data dump? without an index (and contained numerous non-responsive documents), and did not comply with Fed. R. Civ. P. 34. Plaintiffs contended that Defendant did not request a specific format and that they complied with the discovery order and produced their ESI in a proper format (PDF). Plaintiffs also claimed that Defendant?s request to have Plaintiff organize their production based on RFPs would be disproportionate – the production was in date order, allowing Defendant to ?organize, index and search the data at a low cost and with little effort.? The court agreed, finding the production adequate and cited the advisory committee?s notes for Fed. R. Civ. P. 34 (?contemplated that the parties requesting ESI would be able to organize it themselves?). Finally, the court denied Defendant?s motion for supplemented interrogatory responses, finding the Plaintiffs? responses adequate (the burden of finding the answer would be ?substantially the same for either party?).
Electronic Data Involved: ESI
Key Insight: The Court granted Plaintiffs? Motion to Compel Production of Defendants? computer images. Defendants made their source code available to Plaintiffs who then identified comments made prior to the produced source code date. Defendants insisted the pre-July 2013 source code was destroyed when Plaintiffs? former employee became a full-time employee of Defendants. The Court found that Defendants provided a sufficient explanation of good faith destruction of pre-July 2013 code but that limited forensic imaging could recover important deleted materials. The Court held that a tailored examination by a third-party forensic expert of Defendants? computers is appropriate to determine whether the pre-July code is recoverable or to assist in cross-examination as to its destruction.
Electronic Data Involved: Mirror image
Key Insight: Court agreed with recommendation of magistrate judge and held costs incurred by a non-party for compliance with an order compelling production are reimbursable. The magistrate judge ordered the Non-Party to submit a cost estimate for reviewing the documents, preparing a privilege log and producing the non-privileged documents. The cost estimate submitted was over $120,000. Defendant then presented a pared down document request and the magistrate judge issued a Modified Subpoena. The Court accepted the magistrate judge?s recommendation and ordered Defendant to pay $14,174.32 for the costs to Non-Party of complying with the Modified Subpoena stating that Defendant ?was the recipient of the fruits of Non-Party[?s] labor.? The Court also agreed with the magistrate judge that non-parties are not protected by the work product doctrine.
Nature of Case: Non-party compensation for document production
Electronic Data Involved: emails and non-electronic documents
Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.
Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act
Electronic Data Involved: ESI
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