Motion to Compel – Page 46 – Electronic Discovery Law

Webb v. Ethicon Endo-Surgery, Inc., No. 13-1947(JRT/JJK), 2015 WL 317215 (D. Minn. Jan. 26, 2015)

Dec 01 2015

Key Insight: Court overruled parties’ objections to Magistrate Judge’s order addressing scope of discovery where underlying court properly considered and applied the principle of proportionality; addressing defendant’s alleged costs of production, court reasoned in part that ?The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?

Nature of Case: Products liability

Electronic Data Involved: ESI

Themis Bar Review, LLC v. Kaplan, Inc., No. 14CV208-L (BLM), 2015 WL 3397877 (S.D. Cal. May 26, 2015)

Dec 01 2015

Key Insight: Where the parties agreed to a Joint Discovery Plan requiring production in PDF unless metadata was requested and that in such cases the parties should meet and confer to discuss the format of production in good faith and where Defendant made such a request and sought to confer but was ignored, court ordered Plaintiff to re-produce emails with associated metadata at its own expense

Electronic Data Involved: Emails and metadata

Health Mgmt. Assocs., Inc. v. Salyer, No. 14-14337-CIV-ROSENBERG/LYNCH, 2015 WL 12778793 (S.D. Fla. Aug. 19, 2015)

Dec 01 2015

Key Insight: Court granted motion to compel forensic examination of Defendant?s ?personal computer devices and his personal email account? where Defendant claimed that his mobile phone was damaged, that a thumb drive was lost, and that his laptop stopped working, and where Defendant failed to search his email and gave inaccurate ?representations? about it; court admonished Plaintiff ?to give special care? to Defendant?s privacy and ordered that Defendant was allowed to be present for the search, and that the search criteria be prepared in advance and chosen to limit the scope to matters ?directly relevant to its claims for relief?

Electronic Data Involved: Forensic examination of computer, devices, email

Dixon v. Experian Info. Solutions, Inc., No. 2:13-CV-227-PPS-PRC, 2014 WL 2881589 (N.D. Ind. June 25, 2014)

Dec 01 2014

Key Insight: Where Plaintiff requested production of ESI in native format and defendant failed to object (thus waiving any objection) but produced the requested data as scanned .pdfs and argued that the native format would contain the same information but would be more difficult to understand (because of shortcut codes, etc.), the court reasoned that plaintiff nevertheless requested native format to no objection and ordered that the native format be produced

Nature of Case: Fair Credit Reporting Act

Electronic Data Involved: ESI, database

U.S. v. Capitol Supply, Inc., No. 13-mc-0373 (BAH), 2014 WL 1046006 (D.D.C. Mar. 19, 2014)

Dec 01 2014

Key Insight: Where government had requested production in specific electronic formats (Database, Access or Excel) but company produced materials in PDF format that lacked requested detail and was not searchable across multiple documents, court found production insufficient and noted that the fact that company’s databases lacked certain functionality did not relieve company from responding to subpoenas with responsive information in usable, searchable format and directed company to produce responsive information “in a format that is reasonably usable, which includes searchable, just as its databases are presumably designed to respond to search queries”

Nature of Case: Investigation by Office of the Inspector General re whether company violated the False Claims Act; government petitioned for summary enforcement of OIG supboenas to Capitol Supply, Inc.

Electronic Data Involved: Sales data, country-of-origin information

Gloucester Twp. Hous. Auth. V. Franklin Square Assocs., No. 12-0953 (RMB/AMD), 2014 WL 3974168 (D.N.J. Aug. 12, 2014)

Dec 01 2014

Key Insight: Court evaluated five factors to determine that defendant’s inadvertent disclosure waived the attorney-client privilege, where defendant did not describe the precautions taken, if any, to prevent the disclosure of privileged information, but instead relied on the purportedly voluminous nature of the production, the disputed letters set forth communications between attorney and client concerning clearly privileged, substantive information relating to the litigation, the letters were produced in the litigation on two separate occasions, and defense counsel waited over three months after the letters’ production before attempting to rectify the disclosures and only discovered the inadvertent disclosure while preparing for a deposition

Nature of Case: Breach of contract

Electronic Data Involved: Privileged letters

Executive Mgmt. Servs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2014 WL 5529895 (S.D. Ind. Nov. 3, 2014)

Dec 01 2014

Key Insight: Granting in part plaintiff’s motion to compel, court rejected defendant’s assertion of irrelevance and its conclusory assertions of burdensomeness, finding that defendant had failed to “show with specificity” that plaintiff’s requests were overly burdensome and noting that defendant’s contentions would have more force if defendant had provided an estimate of the cost or hours involved in searching, compiling, and producing the requested information; addressing the discovery of ESI ?more directly,? court ordered defendant to file a disclosure stating the names of all custodians whose ESI was searched, the scope of the ESI searched, date ranges searched for each custodian and specific search terms used, and also provide such information for any additional custodians whose ESI would be searched in light the withdrawal of defendant?s objections; plaintiff was then required, within seven days, to propose a list of additional custodians and scope of ESI, date ranges and specific search terms for such custodians, following which the parties should endeavor to reach agreement regarding the scope of additional e-discovery

Nature of Case: Claims for breach of implied duty of good faith and fair dealing and breach of fiduciary duty

Electronic Data Involved: ESI

Warren Indus., Inc. v. PMG Ind. Corp., No. 13-CV-13026, 2014 WL 5705011 (E.D. Mich. Nov. 5, 2014)

Dec 01 2014

Key Insight: Court rejected defendants’ argument that they did not have access to the email of defendants? Chairman of the Board because the email was kept on a server in Germany that defendants did not own or control, and ruled that, although defendants’ IT manager may not be able to access the Chairman’s email from his Indiana location, the Chairman, as Chairman of the Board of defendant companies, “indeed has possession, custody, and control over his own e-mail communications, regardless of where the server containing these e-mails [was] located; court granted plaintiff’s motion to compel and awarded plaintiff its attorney’s fees and costs associated with the motion

Nature of Case: Breach of contract

Electronic Data Involved: Email stored on server in Germany

Castillon v. Corrections Corp. of Am., No. 1:12-cv-005590EJL, 2014 WL 517505 (D. Idaho Feb. 7, 2014)

Dec 01 2014

Key Insight: Where defendant produced data from timekeeping system in searchable .PDF format and provided attestation from the vice president of technology and chief information officer that that .PDF was the ?only, built-in, reasonably accessible data format? and that producing in the requested format would require Defendant to undertake the ?lengthy and daunting? task of writing a script and where Plaintiffs did not specify the format of production in their request, the court declined to compel re-production of the at-issue data, but noted that if Plaintiffs were willing to pay for the expense of writing a script, ?they may approach Defendant with such a request.?

Nature of Case: Prisoners’ civil rights

Electronic Data Involved: Data from timekeeping system

Smith v. Hillshire Brands, No. 13-2605-CM, 2014 WL 2804188 (D. Kan. June 20, 2014)

Dec 01 2014

Key Insight: Court ordered plaintiff to respond to request for social networking documents that directly referenced or mentioned defendant or the matters raised in plaintiff?s complaint; court found request for production of complete copies of plaintiff?s social networking accounts to be overly broad and indicated its intention to ?follow what appears to be the intermediate course? i.e., allowing defendant ?to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state? and ordered plaintiff to produce all such documents

Nature of Case: Violations of Title VII, Family Medical Leave Act

Electronic Data Involved: Contents of social networking accounts (Facebook, MySpace, Twitter)

Tag:Motion to Compel