Motion to Compel – Page 63 – Electronic Discovery Law

MPCA King of Spades v. T.E.C. 2 Broad., Inc., No. 1:11cv00080, 2012 WL 1203372 (W.D. Va. Apr. 10, 2012)

Dec 01 2012

Key Insight: In litigation including claims that defendants had publically broadcast plaintiffs? copyrighted music without permission, the court noted that the question of ?what songs have been played and when? was at the ?heart? of the litigation and that the inability to retrieve that information in an ?easily accessible format? was the result of defendants? failure to preserve such that mirror imaging was warranted to determine if deleted programming logs could be restored and ordered that defendant bear the risk of any possible interruption to its ability to broadcast while the copying occurred (i.e., plaintiff would not be liable for any interruption in programming)

Nature of Case: Copyright infringement

Electronic Data Involved: Programming logs

Louisiana Worker?s Compensation Corp. v. Quality Exterior Servs. LLC, —So.3d—, 2012 WL 1668027 (La. Ct. App. May 2, 2012)

Dec 01 2012

Key Insight: Court granted writ of certiorari, reversed the ruling of the trial court, and granted defendant?s motion to compel production in native format where plaintiff failed to establish that the discovery sought was ?not reasonably accessible because of undue burden or cost? pursuant to the Louisiana Code of Civil Procedure

Nature of Case: Claims for unpaid portion of insurance premuim

Electronic Data Involved: ESI in native format

Bourne v. Arruda, No. 10-cv-393-LM, 2012 WL 1570831 (D.N.H. May 3, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion for access to defendants? computers and other electronic storage devices (at defendants? expense) where plaintiff?s allegations of incomplete discovery and spoliation were merely speculative and were insufficient to justify his request

Nature of Case: Defamation

Electronic Data Involved: Computers, electronic storage devices

Commercial Law Corp., P.C. v. Fed. Deposit Ins. Corp., No. 10-13275, 2012 WL 1230554 (E.D. Mich. Apr. 12, 2012)

Dec 01 2012

Key Insight: Court overruled plaintiff?s objections to an order allowing mirror imaging of its computers where there was sufficient evidence of the likelihood of fraud to warrant such a search, where the request for inspection was timely (and need not have been asked for in the first discovery request because information evidencing possible fraud did not come to light until later), and where the protocol devised adequately protected potentially privileged information

Nature of Case: Action for recovery of attorneys fees

Electronic Data Involved: Forensic inspection of computers

Illiana Surgery and Med. Ctr., No. 2:07 cv 3, 2012 WL 2049828 (N.D. Ind. June 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to designate a 30(b)(6) deponent to be deposed regarding defendant?s method of maintaining electronically stored information during the relevant time period where the information was relevant to plaintiff?s claims of bad faith and where defendant had produced requested information in a piecemeal fashion and repeatedly supplemented production, despite previously claiming all relevant information had been produced

Nature of Case: Breach of insurance contract and bad faith

Electronic Data Involved: Deponent to testify regarding document management practices

Goldstein v. Colborne Acquisition Co., No. 10 C 6861, 2012 WL 1969369 (N.D. Ill. June 1, 2012)

Dec 01 2012

Key Insight: President and owner of corporation waived privileged as to emails on company servers by consenting to the sale of all company assets, including the company?s servers and emails, without asserting his privilege; shareholders/officers of corporation waived privilege as to messages sent from company email where subjective belief that their communications were confidential was not reasonable in light of company?s email policy which claimed ownership of emails on company systems and reserved the right to access them; court?s analysis applied Asia Global Crossing factors, but acknowledged that privilege waiver inquiries require case-by-case analysis

Nature of Case: Claim of fraudulent sale of business to avoid judgment

Electronic Data Involved: Allegedly privileged emails

Tadayon v. Greyhound Lines, Inc, No. 10-1326, 2012 WL 2048257 (D.D.C. June 6, 2012)

Dec 01 2012

Key Insight: In this case, following analysis of several discovery motions, Magistrate Judge Facciola wrote of the need for cooperation: “III. High Noon. As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town-not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.FN3 First, the parties will meet and confer in person in a genuine, good faith effort. . . .”; also, court ruled that where Clawback agreement imposed no conditions on right to recall privileged documents, defendant could do so irrespective of alleged negligence

Nature of Case: Patent Infringement

Electronic Data Involved: All discovery

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 95362 (W.D.N.Y. Jan. 10, 2012)

Dec 01 2012

Key Insight: Where plaintiff acted to avoid compliance with court?s order to produce information related to email accounts, including passwords, by repeatedly filing motions to stay discovery and by modifying the consent forms related to the examination of his email accounts to effectively delay the search, despite the court?s denial of his motions to stay discovery, the court ordered civil contempt sanctions and ordered plaintiff to pay $5,000 to the court and also ordered payment of defendants? attorneys? fees and costs related to Defendants? Accelerated Motion to Compel, necessitated by plaintiff?s dilatory behavior

Nature of Case: Breach of contract

Electronic Data Involved: Access to emails (passwords, etc.) for forensic examination

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

Anthony v. Atlantic Group, Inc., Nos. 8:09-cv-0283-JMC, 8:09-cv-02942-JMC, 2012 WL 4009490 (D.S.C. Sept. 12, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel ?electronically stored information, electronic mail, and social networking data? related to the issues raised in this case and, noting plaintiffs ?direct access? to the information requested, declined to require defendant to seek the information from the relevant service providers

Nature of Case: Employment litigation

Electronic Data Involved: Email, Social media content

Tag:Motion to Compel