Motion to Compel – Page 57 – Electronic Discovery Law

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

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

Tapp v. New York State Urban Dev. Corp., No. 9131N, 2013 WL 3622969 (N.Y. App. Div. Jan. 31, 2013)

Dec 01 2013

Key Insight: Lower court ?correctly determined that plaintiff?s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection? and that ?to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s Facebook account?

Nature of Case: Personal Injury

Electronic Data Involved: Facebook

Athome Care, Inc. v. The Evangelical Lutheran Good Samaritan Soc?y, No. 1:12-cv-053-BLW, 2013 WL 1819691 (D. Idaho Apr. 30, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion to compel production of metadata and, noting that Defendant ?would have produced the requested metadata but for an inadvertent change to the creation date on certain documents,? indicated that the real question was ?how to resolve that mistake, which essentially requires the court to apply the Rule 26(b)(2)(C) balancing test;? court considered fact that Defendant ?created the problem? although not in bad faith (?accidents happen?) and further found that the burden of production was not ?all that great? and ordered the production of the requested metadata

Nature of Case: Breach of contract/licensing agreement

Electronic Data Involved: metadata

Sophia & Chloe, Inc. v. Brighton Collectibles, Inc., No. 12cv2472-AJB(KSC), 2013 WL 5212013 (S.D. Cal. Sept. 13, 2013)

Dec 01 2013

Key Insight: Court denied Plaintiff?s request for forensic examinations of certain of Defendant?s computers, despite Defendant?s failure to produce internal communications regarding the allegedly infringing jewelry designs where, despite acknowledging Plaintiff?s suspicions, there was no concrete evidence of ?concealment, destruction of evidence, or failure to preserve documents and information? and where Plaintiff was able to explore its suspicions through other ?written and oral discovery tools?

Nature of Case: Copyright and Trademark infringement and unfair competition

Electronic Data Involved: Email, ESI

Mayor of Baltimore v. Unisys Corp., No. JKB 12-614, 2013 WL 4833841 (D. Md. Sep. 10, 2013)

Dec 01 2013

Key Insight: Court denied city’s motion for spoliation sanctions, without prejudice, in light of the evidence offered by Unisys that an unadulterated copy of the pre-litigation version of the software still existed; court ordered parties to meet and confer in person to address the issues the city had encountered with the software and reconstructng the testing environment, attempt to resolve defendant’s work product and attorney client privilege claims, and prepare a joint report to the court summarizing the meet and confer

Nature of Case: Breach of contract, breach of express warranties, and intentional misrepresentation claims relating to the development of a tax software system

Electronic Data Involved: Pre-litigation version of the tax software, interim software files, source code

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

RPM Pizza LLC v. Argonaut Great Cent. Ins. Co., No. 10-684-BAJ-SCR, 2013 WL 6054551 (M.D. La. Nov. 15, 2013)

Dec 01 2013

Key Insight: Court ordered defendant to provide ESI in the format requested, reasoning that defendant waived its objection by not timely asserting it, and also rejected the argument that the plaintiff had not shown why it was necessary for defendant to produce in the requested form where, pursuant to Fed. R. Civ. P. 24(b)(2)(E), a requesting party is not required to make such a justification

Electronic Data Involved: ESI

Tag:Motion to Compel