Motion to Compel – Page 27 – Electronic Discovery Law

B&R Supermarket, Inc. v. Visa, Inc., No. 16-cv-01150-WHA (MEJ), 2017 WL 235182 (N.D. Cal. Jan. 19, 2017)

Dec 01 2017

Key Insight: Court found requested data was relevant to class certification but, where Defendant indicated that Plaintiff?s requests ?encompass [ ] tens of millions of transactions and weekly data for each of the more than 6 million merchants that accept American Express? that ?is scattered over at least 6 databases at American Express,? court agreed with Defendant that the requested discovery created an ?enormous burden? and therefore ordered sampling, in a size to be agreed upon by the parties at a court-ordered meet and confer

Nature of Case: class action

Electronic Data Involved: Chargeback-related data (ESI)

Bratcher v. Navient Sols., Inc., 249 F.Supp.3d 1283 (M.D. Fla. 2017)

Dec 01 2017

Key Insight: Where defendant sought to examine plaintiff?s smartphone itself for the purpose of obtaining a log of blocked calls arguing that ?plaintiff is not entitled to recovery for any blocked calls,? the court noted that defendant had failed to provide legal basis for this position and that ?[T]here is no routine right of direct access to a party?s electronic information system. … absent a factual finding of some non-compliance with [the] discovery rules, direct access is unwarranted.? The court further noted that defendant made no effort to comply with the requirement for a proposal for the protection of privacy rights, the protection of privileged information, and the separation of irrelevant information during inspection. On this basis, the court found direct access to the cell phone unwarranted and denied defendant?s motion to compel.

Nature of Case: Telephone Consumer Protection Act

Electronic Data Involved: Cell Phone Call Block Records

CP Salmon Corp. v. Pritzker, —F. Supp. 3d.—,No. 3:16-cv-00031-TMB, 2017 WL 744022 (D. Alaska Feb. 24, 2017)

Dec 01 2017

Key Insight: Applying Fed. R. Evid. 502, court found Defendants? inadvertent inclusion of privileged information in the Administrative Record did not waive privilege where declarations of persons with ?sufficient personal knowledge? established the inadvertence of the inclusion where, in light of the multiple levels of review of the documents and the relevant circumstances including the ?sheer number of pages and compressed timeframe,? the court found Defendant had undertaken reasonable steps to prevent disclosure, and where Defendants took action to rectify the error within three weeks of the disclosure

Nature of Case: Administrative law

Electronic Data Involved: Administrative Record

Rutledge-Plummer v. SCO Family of Servs., No. 15-CV-2468 (MKB) (SMG), 2017 WL 570765 (E.D. N.Y. Feb. 13, 2017)

Dec 01 2017

Key Insight: Plaintiff also sought production of all emails between 8 named individuals dating from August 1, 2013 to the present (December 2016). The court found the scope of this request (lacking any search terms or subject matter restrictions) was too burdensome when weighed against the potential benefit of production. Plaintiff narrowed her request to docs that related to her and limited the date range during oral argument, however the court found that this was still too broad and too close to the close of discovery to be permitted. Furthermore, Defendant had already produced emails relating to Plaintiff from most of the 8 custodians and had written to Plaintiff suggesting she propose search terms if she sought additional discovery. Plaintiff?s counsel, whose representation started after Defendant?s letter to Plaintiff, did not review Defendant?s earlier discovery responses and waited 10 months before requesting the additional discovery (using the overbroad parameters). The court denied Plaintiffs request except for certain documents referenced in depositions that were not produced. The court also denied Plaintiffs overly broad request for ?all documents pertaining to policies, procedures, and guidelines related to Defendant?s computers, computer systems, electronic data and electronic media? as too burdensome.

Nature of Case: Motion to Compel in employment discrimination action

Electronic Data Involved: ESI

Wilson v. Washington, No. C16-5366 BHS, 2017 WL 518615 (W.D. Wash. Feb. 8, 2017)

Dec 01 2017

Key Insight: Addressing Plaintiff?s concerns regarding Defendants production, characterized by the court as ?thousands of pages of unorganized documents,? the court reasoned that ?Rule 33(d) does not supplant a party?s duty to adequately label and identify responsive documents under Rule 34,? that courts have recognized that production of documents as kept in the usual course of business ?may require the producing party to include different identifying information according to the type of document or file produced,? and that ?the most recent? court decisions have held that both Rule 34(b)(2)(E)(i) and (ii) apply to the production of ESI and concluded that Defendant?s response fell short of its duties under 34(b)(2)(E) and 33(d)(1) and stated that ?[s]ome form of further organization or specification is required to signify that they have provided ?rationally organized productions??

Electronic Data Involved: Unorganized ESI

Am. Auto. Ins. Co. v. Hawaii Nut & Bolt, Inc., No. 15-00245 ACK-KSC, 2017 WL 80248 (D. Hawai?I Jan. 9, 2017)

Dec 01 2017

Key Insight: Court reserved ruling on request for re-production of ESI where parties were ordered to confer, or, more specifically, to ?put their respective IT representative sin contact to see if an understanding can be reached about the format in which the ESI can be produced, as well as the related metadata (if any such metadata exists).?; in its analysis, court stated: ?ESI must be produced in the form in which it is maintained in the ordinary course of business, and if this includes metadata, the metadata must also be provided to Safeway.?

Electronic Data Involved: ESI, metadata

Alexis v Rogers, No. 15cv691-CAB (BLM), 2017 WL 1073404 (S.D. Cal. Mar. 21, 2017)

Dec 01 2017

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

Youngevity Int’l Corp. v. Smith, No. 16-cv-704-BTM-JLB (S.D. Cal. Dec. 21, 2017)

Dec 01 2017

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

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TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., No. 14cv2021-W (BLM), 2017 WL 1008788 (S.D. Cal. Mar. 15, 2017)

Dec 01 2017

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

Holick v. Burkhart ( No. 16-1188-JTM (D. Kan. Nov. 30, 2017), 2017)

Nov 30 2017

Key Insight: Plaintiff did not specify whether any documents were being withheld in the course of making objections to discovery motions

Nature of Case: libel, assault, slander

Electronic Data Involved: documents and communications posted or stored on social media, e-mails

Keywords: “facially overbroad”, “anti-abortion”, “nearly two-decade time frame”, “provide any responsive information for the past seven (7) years”

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Tag:Motion to Compel