Motion to Compel – Page 55 – Electronic Discovery Law

E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where former employee filed claim with EEOC alleging sexual harassment and retaliation, and EEOC issued a subpoena to employer staffing agency seeking information to determine how long the staffing agency had required applicants to waive statutorily protected statutes of limitations, court declined to enforce the subpoena, finding that the EEOC’s subpoena exceeded its authority in that the information sought went beyond the issues arising out of former employee?s individual charge; court further determined that the burden imposed on the staffing agency far exceeded the minimal relevance of the evidence sought, given that staffing agency processed 130,000 temporary employee applications during the time period covered by the subpoena, applications were not kept in a central repository or electronically, and compliance would require manual review of each employment application maintained in paper format at each of its ten office locations and would disrupt agency’s day-to-day operations

Nature of Case: Motion for enforcement of administrative subpoena issued to staffing agency relating to investigation of former employee’s claim of sexual harrassment and retaliation

Electronic Data Involved: Versions of employment application form used by staffing agency between January 1, 2012 and May 31, 2014, including all pages of and revisions to each form

Icon-IP Pty Ltd., v. Specialized Bicycle Components, Inc., No. 12-cv-03844-JST (MEJ), 2014 WL 6788182 (N.D. Cal. Dec. 2, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to compel Defendant to produce additional documents relevant to their design infringement claims by searching Defendant?s emails and electronic design documents. Defendant argued that this comprehensive search of electronic design documents would be ?overly burdensome, oppressive, and not reasonably calculated to lead to discovery of admissible evidence,? and conducted a reasonable search responsive to Plaintiffs request, but did not explain why and how the comprehensive search would be burdensome. Defendant complied with a stipulation agreeing to specific email search terms and custodians, subject to objections which Plaintiff did not respond to. The court ordered that Plaintiff was entitled to additional discovery of electronic design documents because Defendant did not meet the burden of showing the request was unduly burdensome. However, since Defendant did comply with the stipulation, further email searches were not needed.

Nature of Case: Patent Litigation

Electronic Data Involved: ESI

Harrington Enters., Inc. v. Safety-Kleen Sys., Inc., No. 13-00167-CV-W-BP, 2014 WL 12611318 (W.D. Mo. July 11, 2014)

Dec 01 2014

Key Insight: Court denied motion to compel searches of current and proposed custodians using additional search terms where Plaintiff failed to establish the relevance of the terms or the likelihood they would lead to admissible evidence and where Defendant had already provided discovery regarding the alleged issue, thus rendering the discovery cumulative and duplicative; court also denied motion to add custodians where Plaintiff again failed to establish relevance and where Defendant had shown that the ESI for the requested custodians was not reasonably accessible because it would require restoration of disaster backup tapes and ?substantial time, effort, and cost? to search

Electronic Data Involved: ESI (additional search terms, custodians)

Freres v. Xyngular Corp., No. 2:13-cv-400-DAK-PMW, 2014 WL 1320273 (D. Utah Mar. 31, 2014)

Dec 01 2014

Key Insight: Court granted motion to compel production of Plaintiff?s cell phone for copying and inspection and rejected Plaintiff?s arguments that the information sought was beyond the scope of discovery, that the inspection should not be allowed because the phone contained personal and/or privileged materials (which the court reasoned the Standard Protective Order would adequately address), and that the inspection was unduly burdensome; court acknowledged Plaintiff?s concern that the phone was her ?only point of contact in the case of an emergency? and ordered Defendant to obtain and pay for an alternate cell phone for Plaintiff?s use while hers was away

Nature of Case: Wrongful termination

Electronic Data Involved: Cellular Phone

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

Kwan Software Eng?g, Inc. v. Foray Techs., LLC, No. C 12-03762 SI, 2013 WL 5487421 (N.D. Cal. Oct. 1, 2013)

Dec 01 2013

Key Insight: Where parties agreed to production of ESI in searchable form with metadata but Defendant produced TIFF images without metadata, court ordered re-production of ESI in accordance with parties’ agreement and amended the pretrial schedule

Electronic Data Involved: ESI and metadata

Keller v. Nat?l Farmers Union Prop. & Cas. Co., No. CV 12-72-m-DLC-JCL, 2013 WL 27731 (D. Mont. Jan. 2, 2013)

Dec 01 2013

Key Insight: Court denied defendant?s motion to compel plaintiffs? production of printouts of all social media content where the court recognized that discovery of social network content has been allowed by other courts upon a showing that publically available information on those sites undermines the plaintiff?s claims and where no such showing was made in the present case

Nature of Case: Breach of insurance contract

Electronic Data Involved: Social Network Information: Facebook, MySpace, Twitter, etc.

Whiteamire Clinic, P.A., Inc. v. Quill Corp., No. 12 C 5490, 2013 WL 5348377 (N.D. Ill. Sept. 24, 2013)

Dec 01 2013

Key Insight: Where defendant sought to avoid production of ESI arguing that the retrieval of the requested information from its information systems would be unduly burdensome because of the manner in which the ESI was stored, the court noted that accepting such an explanation would create a ?perverse incentive? encouraging companies to store their data in a way that made it inaccessible except at great burden or cost and granted plaintiff?s motion to compel; court ordered defendant to produce an image of the hard drives of its four relevant information systems to Plaintiff?s expert who would retrieve the relevant information and provide it to defendant for review before production to the plaintiff; Plaintiff would bear the costs (voluntarily).

Nature of Case: Violation of Telephone Consumer Protection Act (sending of unwanted faxes)

Electronic Data Involved: ESI related to recipients of faxes

In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., MDL No. 2342, 2013 WL 8445354 (E.D. Pa. Oct. 31, 2013)

Dec 01 2013

Key Insight: Upon the Plaintiffs? Steering Committee?s motion to compel Pfizer to produce a log identifying documents withheld from production as non-responsive or irrelevant, particularly email attachments, the court noted the prior comprehensive treatment of the question of whether attachments must be produced in Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011) and concluded in this case that requiring defendant to log or produce with redactions those documents previously withheld was not warranted absent a showing of a ?systematic failure in Pfizer?s document review? or that the failures were ?on a large scale? or the product of an ?unjustified decision? but reasoned that the burden of requiring a log or other justification for the witholdings going forward would not carry as high a burden and ordered the parties to confer to determine how best to track that information going forward

Nature of Case: Product Liability

Electronic Data Involved: Attachments to ESI, particularly email

FDIC v. Giannoulias, No. 12 C 1665, 2013 WL 5762397 (N.D. Ill. Oct. 23, 2013)

Dec 01 2013

Key Insight: Where defendants propounded 242 requests for documents, trial court declined to require FDIC to review thousands of documents ?to weed out a presumably small subset of irrelevant materials,? or to organize its Phase II production according to defendants? numerous discovery requests; court granted in part and denied in part the parties? respective motions concerning search terms to be used to identify responsive material, and ruled that FDIC would bear the costs of production as they arose subject to the possibility that the court may later require contribution from the defendants; court further directed FDIC to submit to the court a revised proposed ESI protocol

Nature of Case: Receiver sued former directors and officers of bank to recover approximately $114 million in losses bank suffered on 20 commercial real estate loans

Electronic Data Involved: ESI, including email

Tag:Motion to Compel