Motion to Compel – Page 54 – Electronic Discovery Law

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

Bell Inc. v. GE Lighting, LLC, 6-14-CV-00012, 2014 WL 1630754 (W.D. Va. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court ordered partial cost-shifting of third party?s costs in responding to subpoena upon evaluating several factors, including the third party?s (poor) financial condition, but declined to shift all costs where the third party declined the requesting parties? offer to review the documents – through outside counsel – subject to a clawback agreement (resulting in higher costs) and where the court found the third party was an interested party and that the litigation was not of public importance; court noted in its discussion that ?Courts in this district have found that it is untenable for a party to insist on individually reviewing all documents for privilege and responsiveness, rather than producing documents under a protective order with a claw back provision.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 13 C 9171, 2014 WL 1856773 (N.D. Ill. May 7, 2014)

Dec 01 2014

Key Insight: Where e-discovery consultant jointly retained by parties reported that three previously undisclosed flash drives had been connected to former employee’s personal computers during the relevant time period, court agreed with plaintiff that consultant should be allowed to image and review the three flash drives but ruled that costs of such review would be borne by plaintiff given the likely limited usefulness of the search

Nature of Case: Misappropriation of confidential information

Electronic Data Involved: Flash drives and other electronic devices used by former employee

Apparent, Inc. v. Ai-Daiwa, Ltd., No. C 13-04156 VC (LB), 2014 WL 3738348 (N.D. Cal. July 28, 2014)

Dec 01 2014

Key Insight: Where defendant raised seven problems with plaintiff’s ESI production and sought an order compelling plaintiff to hire a qualified e-discovery vendor, court denied the request because plaintiff was addressing the problems and the circumstances of the case did not support “the potentially expensive outcome of a private vendor” given the short relevant time period and limited universe of documents; court further remarked: ?That being said, generally documents should be produced electronically (not in hard copy), and native file production (or at least processed ESI that contains relevant metadata) is better than paper production.?

Nature of Case: Breach of contract, product defect

Electronic Data Involved: ESI

Alter v. Rocky Pt. Sch. Dist., No. 13-1100 (JS)(AKT), 2014 WL 4966119 (E.D.N.Y. Sep. 30, 2014)

Dec 01 2014

Key Insight: Notwithstanding court?s finding that defendants lost materials due to their negligence in failing to: (1) institute a litigation hold until more than two years after plaintiff filed her notice of claim, (2) discuss a litigation hold with named individual defendants and other key players, (3) preserve all ESI regarding plaintiff from named individual defendants and all key custodians in separate backup tapes or in some other medium, or (4) preserve work-related ESI utilized by key players on their personal computers or other devices, court declined to impose spoliation sanctions as it found no intent on the part of defendants to spoliate material evidence and plaintiff failed to meet burden of showing with some degree of factual detail that lost materials were relevant or helpful in prosecuting her claim; court further denied plaintiff?s request for appointment of independent forensic computer expert, but did impose $1,500 sanction against school district and its counsel given that court found merit to some of plaintiff?s arguments

Nature of Case: Workplace discrimination claims

Electronic Data Involved: ESI, emails

In re Indeco Sales, Inc., No. 09-14-00405-CV, 2014 WL 5490943 (Tex. App. Oct. 30, 2014)

Dec 01 2014

Key Insight: Ruling on petition for writ of mandamus, state appellate court found that trial court did not abuse its discretion in denying defendants’ motion to compel: (1) production of plaintiff’s cell phone for forensic examination and data extraction (to retrieve stored and deleted photographs and videotapes depicting plaintiff subsequent to accident, stored and deleted text messages, emails and audio recordings referencing or reflecting plaintiff’s alleged depression, etc.) and (2) production of information, data, posts and conversations from plaintiff’s Facebook page, because the requests were not properly limited in time and scope, were overly broad and could have been more narrowly tailored, and constituted an unwarranted intrusion

Nature of Case: Personal injury claims stemming from motor vehicle accident

Electronic Data Involved: Data stored on plaintiff’s cell phone; and information, data, posts and conversations from plaintiff’s Facebook page

Kelley v. Smith?s Food & Drug Ctrs., Inc., No. 2:14-cv-00856-RCJ-CWH, 2014 WL 6474026 (D. Nev. Nov. 19, 2014)

Dec 01 2014

Key Insight: Store video was not protected from production by the impeachment evidence exception because the video?s impeachment value was too closely linked to its substantive value, and the evidence the video offered could not be realistically confined to use for impeachment purposes only; court granted both plaintiff?s motion to compel production of the video and plaintiff?s motion for protective order, which protected plaintiff from being forced to submit to a deposition without first being able to view the video

Nature of Case: Slip and fall

Electronic Data Involved: Store video containing footage of plaintiff’s slip-and-fall

Illiana Surgery and Med. Care Ctr. LLC v. Hartford Fire Ins. Co., NO. 2:07 cv 3, 2014 WL 1094455 (N.D. Ind. Mar. 19, 2014)

Dec 01 2014

Key Insight: Following evaluation of the relevant eight part test, court declined to shift the costs of producing emails stored on Defendant?s backup system pursuant to Rule 26(b)(2)(B) (inaccessible data) but placed limitations on the discovery allowed and ordered Defendant to restore eight weeks of backup tapes at its own expense and to search them for the requested emails and invited Plaintiff to renew its motion if, after Defendant?s search was complete, it could show that ?further exploration? was necessary

Nature of Case: Insurance Litigation

Electronic Data Involved: Emails stored on backup tapes

West Plains, LLC v. Retzlaff Grain Co., No. 8:13CV47, 2014 WL 2515198 (D. Neb. June 3, 2014)

Dec 01 2014

Key Insight: Where plaintiff produced thousands of documents on disc and in hard copy, and divided some of the electronic documents into files on the disc but otherwise provided no indices to guide defendants to responsive materials, court found plaintiff?s responses insufficient and ordered plaintiff to produce index or other tool to guide defendants to the documents responsive to each individual request for production

Nature of Case: Company sued competitor, and former employees who had resigned to join competitor, for misappropriation of confidential business information, tortious interference with business relationships, and related claims

Electronic Data Involved: ESI produced on disc

Freedman v. Weatherford Int?l Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL 4547039 (S.D.N.Y. Sep. 12, 2014)

Dec 01 2014

Key Insight: Where plaintiffs offered 18 emails from “critical custodians” that were produced not by defendant but by a third party as new evidence to support motion for reconsideration of order denying motion to compel, court noted differences in search terms used in respective searches and opined that requests for discovery regarding a party?s discovery efforts should be ?closely scrutinized in light of the danger of extending the already costly and time consuming discovery process ad infinitum?; rejecting plaintiffs’ motion for reconsideration, court observed: ??[T]he Federal Rules of Civil Procedure do not require perfection.? . . . Weatherford has reviewed ?millions of documents and [produced] hundreds of thousands,? comprising ?nearly 4.4 million pages? in this case. It is unsurprising that some relevant documents may have fallen through the cracks.?

Nature of Case: Putative class action alleging securities fraud

Electronic Data Involved: Email

Tag:Motion to Compel