Motion to Compel – Page 52 – Electronic Discovery Law

TVIIM, LLC v. McAfee, Inc., No. 13-cv-04545-VC (KAW), 2014 WL 5280966 (N.D. Cal. Oct. 15, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part plaintiff?s request to compel defendant to produce emails employing particular keywords in Boolean search of five identified custodians, stating that defendant need not run two of the requested searches because they used truncated versions of defendant?s product names — something that was prohibited by the parties? ESI Order barring use of indiscriminate terms, such as the producing company?s name or its product name, unless combined with narrowing search criteria to reduce risk of overproduction; as to third requested search, magistrate judge ordered parties to confer to identify keywords that would remove ?out of office? and other automatic responses from the results, and ordered defendant to produce emails within seven days of parties? agreement

Nature of Case: Patent infringement

Electronic Data Involved: Email

Klayman v. City Pages, No. 5:13-cv-143-Oc-22PRL, 2014 WL 5426515 (M.D. Fla. Oct. 22, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion to compel given broad scope of the requests and plaintiff’s limited showing as to relevance, and defendants’ representation that they had produced all the materials upon which they relied in writing the subject publications; court further denied request for appointment of third party to conduct forensic examination of defendants’ work and personal computers, telephone records and cell phone records, finding that plaintiff’s conclusory and speculative assertions that defendants were concealing evidence were inadequate to meet his burden of showing good cause for such an invasive computer examination

Nature of Case: Defamation claims based on statements made in three newspaper articles

Electronic Data Involved: ESI

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317 EJD (HRL), 2014 WL 4088201 (N.D. Cal. Aug. 19, 2014)

Dec 01 2014

Key Insight: Among other rulings on the parties? respective discovery motions, the court: (1) denied plaintiff?s request for an order compelling defendants to produce document retention policies and litigation hold notices issued in the case, because litigation hold notice was protected as attorney-client communication and/or work product and burden of producing requested material, however minimal, outweighed its likely benefit; court noted that plaintiff waited over one year to follow up on particular request, relevance of material to case merits was dubious, and timing of motion following court?s finding that plaintiff had committed spoliation by failing to timely file its litigation hold suggested that plaintiff?s motivation was retaliatory; and (2) denying plaintiff?s request for source code and documents related to newest version of accused product, which version was still in development, since discovery into such material would be premature because an incomplete, non-?live? product cannot be evaluated for infringement in patent litigation

Nature of Case: Patent infringement

Electronic Data Involved: ESI, litigation hold notice, source code

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

In re Autohop Litig., No. 12-CV-4155 (LTS)(KNF), 2014 WL 5591047 (S.D.N.Y. Nov. 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part defendant’s motion to compel, agreeing with plaintiff that particular document request was overly broad, unduly burdensome, and incomprehensively vague, and concluding that enormous burden and expense that would incurred by plaintiff to access and process the requested data outweighed any benefit defendant might gain; court further noted that the request violated agreement reflected in parties’ Joint Electronic Discovery Submission that they would not be required to search for “other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business”

Nature of Case: Declaratory action with counterclaims for copyright violations, breach of contract and fraud

Electronic Data Involved: Internal communications, viewership tracking data

Sasol N. Am., Inc. v. Kan. State Inst. for Commercialization, No. 14-mc-218-JWL-KMH, 2014 WL 3894357 (D. Kan. Aug. 8, 2014)

Dec 01 2014

Key Insight: Despite fact that plaintiff served all-encompassing subpoena to third parties without first attempting to access the breadth of information from the defendant, in light of nonparty?s unique relationship with defendant in the underlying Texas litigation, the potential for indemnification, its financial interest in the Texas litigation, and nonparty?s repeated (yet unfulfilled) promises to produce responsive material, court determined it was appropriate for nonparty to bear some burden and that limited production was appropriate; court narrowed relevant timeframe for search and ordered nonparty to use search terms proposed by plaintiff and produce its ESI, including emails, attachments, exhibits and word processing documents, which contain those nine search terms

Nature of Case: Subpoena issued in a patent infringement and trade secret case pending in the Southern District of Texas

Electronic Data Involved: Email

Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014)

Dec 01 2014

Key Insight: Although court found City’s preservation efforts “plainly deficient,” as City did not notify its IT department to suspend automatic procedure for eliminating deleted emails after 30 days, nor did it instruct its IT department to assist key individuals in collecting and preserving relevant email or provide assistance in doing so from the legal department, court decline to impose case-dispositive sanctions against City because plaintiff did not discuss the bad faith standard nor show how it was satisfied, and loss of only one email did not constitute significant prejudice where plaintiff collected and presented good deal of evidence on same issue; court granted plaintiff?s motion to compel production of unredacted versions of two litigation hold letters sent by the City to its employees

Nature of Case: Fire Captain alleged claims of retaliation in violation of the First Amendment and state law claims for defamation and injunctive relief

Electronic Data Involved: Email

M Seven Sys. Ltd. v. Leap Wireless Int?l, Inc., No. 12cv01424 CAB (RBB), 2014 WL 3942200 (S.D. Cal. Aug. 11, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for an order to show cause why the defendants should not be held in contempt for failing to all historical versions of source code for each cell phone model at issue, finding that magistrate judge’s discovery order did not preclude more than one reasonable interpretation of its scope, that defendants reasonably interpreted and substantially complied with the order by producing every version of the source code that they possessed

Nature of Case: Plaintiff alleged misappropriation of trade secrets, copyright infringement, violation of the Digital Millennium Copyright Act, violation of California Penal Code ? 502, unfair competition, civil conspiracy to misappropriate trade secrets, and civil conspiracy to unfairly compete

Electronic Data Involved: Various versions of source code

In re Incretin Mimetics Prods. Liab. Litig., MDL Case No. 13md2452 AJB (MDD), 2014 WL 4987877 (S.D. Cal. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where defendants estimated that cost of production would be between $280,000 and $400,000, or even greater, court denied plaintiffs’ motion to compel production of adverse event source documents and databases, finding that the additional time and expense of identifying, redacting, and producing the source files outweighed the likely benefit resulting from evaluating source files for instances of mis-classification

Nature of Case: Products liability

Electronic Data Involved: Source documents underlying adverse event reports and adverse event databases

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Dec 01 2014

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

Tag:Motion to Compel