Motion to Compel – Page 61 – Electronic Discovery Law

Cefalu v. Holder, No. 12-0303 THE (JSC), 2013 WL 4102160 (N.D. Cal. Aug. 12, 2013)

Dec 01 2013

Key Insight: Where Defendant sought to compel production of plaintiff’s personal computers’ hard drives for inspection or to compel Plaintiff?s counsel to perform an independent search of the computer and other electronic devices to ensure that all responsive documents had been produced and where Defendant cited a prior search by Plaintiff?s counsel that yielded additional responsive documents and Plaintiff?s counsel?s admission that she had never examined the contents of Plaintiff?s personal computers, the court acknowledged that the rules do not create a right of direct access to a party?s electronic information systems, but, also acknowledged that the history of Plaintiff?s document productions suggested that he may not ?fully understand his search obligations,? and thus the court ordered Plaintiff?s counsel to ensure that all responsive documents on the computers and other devices were located and produced but declined to allow Defendant to conduct its own examination absent a demonstration of good cause

Electronic Data Involved: Contents of personal computer

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL 4508128 (E.D. La. Aug. 22, 2013)

Dec 01 2013

Key Insight: Court sustained objections to requests for social media content reasoning that although such content was potentially discoverable, Defendant had not made a sufficient showing that the material sought was ?reasonably calculated to lead to the discovery of admissible evidence,? and went on to reason that: ?Simply placing their mental and physical conditions at issue is not sufficient to allow PPI to rummage through Johnson’s or Croke’s social media sites. Almost every plaintiff places his or her mental or physical condition at issue, and this Court is reticent to create a bright-line rule that such conditions allow defendants unfettered access to a plaintiff’s social networking sites that he or she has limited from public view.?

Electronic Data Involved: Social Network content (e.g. Facebook, MySpace, etc.)

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

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

Custom Hardware Eng?g & Consulting, Inc. v. Dowell, No. 4:10CV00653 ERW, 2011 WL 10496 (E.D. Mo. Jan. 3, 2012)

Dec 01 2012

Key Insight: Relying heavily on Ameriwood Industries v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006), court ordered the discovery of ESI on defendant?s computers in accordance with three-step procedure: 1) imaging of hard drive by forensic expert, 2) recovery of ESI from that image, 3) defense counsel?s review and production of responsive non-privilege information; upon parties? disagreement regarding search terms to be utilized in step three, court rejected defendant?s arguments that plaintiff?s proposed terms would result in an ?unreasonable number of irrelevant results? and the production of privilege information and also rejected defendant?s proposed search terms as too narrow, where defendant proposed that only exact matches, including in capitalization and phrasing, be considered

Nature of Case: Copyright infringement, trade secret misappropria-tion, breach of contract, breach of fiduciary duty, and other related claims

Electronic Data Involved: Contents of hard drive

Brocade Commc?ns Sys. v. A10 Networks, Inc., No. 10-CV-03428-LHK, 2012 WL 70428 (N.D. Cal. Jan. 9, 2012)

Dec 01 2012

Key Insight: Finding that plaintiff had shown good cause for requiring production of ?not reasonably accessible information,? the court granted plaintiff?s motion to inspect an individual defendant?s hard drive noting that such inspections had been allowed by other courts in cases of alleged misappropriation of trade secrets and further citing the relevance of the hard drive?s contents to the underlying claims, the inability to obtain the evidence elsewhere, and defendant?s inability to explain its statement that the hard drive in question had been ?recycled?; court held that plaintiff was ?not entitled to set the conditions of the inspection unilaterally nor select the person who will perform it? and ordered the parties to confer to agree on a protocol

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Contents of hard drive

Bean v. John Wiley & Sons, Inc., No. CV 11-08028-PCT-FJM, 2012 WL 129809 (Jan. 17, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to produce a key explaining the codes used on an already-produced spreadsheet where Rule 34(a)(1)(A) ?explicitly places the burden of translating the data on the responding party? and where the task of providing plaintiff with the meaning of specifically identified acronyms was not overly burdensome compared to requiring plaintiff to figure them out using prior deposition testimony and ?informal communications with counsel?

Nature of Case: copyright infingement

Electronic Data Involved: Spreadsheet

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387(E.D. Mich. 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion to compel plaintiff to authorize access to her Facebook account where defendant did not have the ?generalized right to rummage at will through information that Plaintiff has limited from public view? absent a threshold showing that the requested information is reasonably calculated to the lead to the discovery of admissible evidence and where defendant failed to make that showing (court noted, for example, that the pictures available for public viewing on plaintiff?s account did not show activity inconsistent with plaintiff?s claims of injury)

Nature of Case: Slip and fall

Electronic Data Involved: Facebook contents

Indep. Mktg. Group, Inc. v. Keen, No. 3:11-cv-447-J-25MCR, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced ESI as documents compiled onto just a few PDF files that lacked metadata or searchable text by printing the ESI and then scanning it for production and resisted reproduction on the grounds of undue burden based on the estimated $10,000 cost of doing so, the court found that the ESI was not produced as ordinarily kept or in a reasonably usable format and further declined to find the information was not reasonably accessible or, if it was, that good cause had been shown to compel reproduction

Nature of Case: Breach of fiduciary duties, tortious interference with business relationships, fraud, breach of contract, conversion, and replevin

Electronic Data Involved: ESI

Tag:Motion to Compel