Motion to Compel – Page 66 – Electronic Discovery Law

Fleisher v. Phoenix Life Ins. Co., No. 11 Civ. 8405 (CM)(JCF), 2012 WL 6732905 (S.D.N.Y. Dec. 27, 2012)

Dec 01 2012

Key Insight: Court addressed Plaintiff?s motion to compel production and declined to shift defendant?s discovery costs where defendant addressed only two of seven factors to be considered when seeking to shift costs but sua sponte entered a 502(d) order to ease defendant?s production burden if they chose to avail themselves of it; court?s analysis made clear that counsel?s resources are not an appropriate consideration in a cost shifting analysis

Nature of Case: Claims arising from insurance company’s alleged improper rate increase

Electronic Data Involved: ESI

Norfolk S. Railway Co. v. Hartry, 316 Ga. App. 532 (Ga. Ct. App. June 29, 2012)

Dec 01 2012

Key Insight: Where relevant data could only be viewed using particular software, a license for which would cost $500, the trial court ordered Norfolk Southern to provide the data to Plaintiff ?in some useable form ? either by obtaining permission from [the owner of the software] to produce the data ?, by providing [Plaintiffs] with a computer with the necessary software? or by any other method the parties agreed to. On appeal, the court found no abuse of discretion, ?especially given the crucial nature of the evidence, the relatively minor cost of the license when compared to the amount at stake in the lawsuit, and the fact that it was Norfolk Sothern?s decision to equip its locomotives? with a recording device from which it could provide data to a third party only upon payment of a licensing fee.

Nature of Case: Personal injury arising from collision between train and tractor trailer

Electronic Data Involved: Event data recorder

King v. Rozek Co., No. 11-cv-01685-CMA-MJW, 2012 WL 2884788 (D. Colo. July 13, 2012)

Dec 01 2012

Key Insight: Where, based on discrepancies in certain witnesses? testimony, Plaintiff believed that relevant investigation notes/computer journal entries were created on a date later than the date alleged by the defendant, and where the creation date was relevant to the issues in the case, the court granted plaintiff?s motion to compel a forensic investigation of the computer on which the evidence was created, but sua sponte issued a protective order that would allow Plaintiff?s forensic investigator to make a mirror image of the at-issue computer but would limit his investigation to the question of when the notes were made or modified and which prohibited the investigator from accessing or viewing information not relevant to that discreet issue

Nature of Case: Employment Discrimination

Electronic Data Involved: Computer hard drive

Reid v. Ingerman Smith, LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012)

Dec 01 2012

Key Insight: Finding that Plaintiffs? social media content could be relevant to her claims, court ordered photos, communications and posts since January 2008 be produced to Plaintiff?s counsel for review and that relevant portions be produced in accordance with the court?s specific instructions (e.g., photos posted by third parties may be subject to production if relevant, posts and communications by third parties are relevant to the extent they contain observations of the plaintiff, etc.)

Nature of Case: Sexual harassment

Electronic Data Involved: Social media (e.g., Facebook)

In re Estate of Tilimbo, No. 329/M-2007, 2012 WL 3604817 (N.Y. Sur. Ct. Aug. 22, 2012)

Dec 01 2012

Key Insight: Court granted access to third party attorney?s computers by a third party vendor for purpose of imaging and searching for documents related to the at-issue deed/transfer but imposed strict conditions, including time limits, and found that if the time limits could not be accommodated, then the burden of inspection was too great

Nature of Case: Action related to contested probate

Electronic Data Involved: computers/hard drives

Roxane Labs. Inc. v. Abbot Labs., No. 2:12-cv-312, 2013 WL 1829569 (S.D. Ohio Apr. 30, 2012)

Dec 01 2012

Key Insight: Where Plaintiff argued that production of the requested ESI would be unduly burdensome because of the lack of a ?centralized electronic document system? which would require it to ask ?hundreds of employees to search their electronic documents,? and would require ?significant effort to review and produce,? and where Plaintiff also argued that a 30(b)(6) deposition would be a less burdensome method of obtaining discovery, the court noted the lack of information provided to establish the burden alleged and reasoned that ?the mere fact that a party does not have a centralized electronic document system? does not establish undue burden and granted defendant?s motion to compel

Nature of Case: Patent litigation seeking declaratory judgment of invalidity and noninfringement

Electronic Data Involved: ESI

Townsend v. Ohio Dept. of Transp., No. 11AP-672, 2012 WL 2467047 (Ohio Ct. App. June 28, 2012)

Dec 01 2012

Key Insight: Trial court abused its discretion in denying motion to conduct forensic analysis of defendant?s email and electronic data systems where defendant?s employee admitted to sending a highly relevant email that was never produced and where defendant failed to establish that production ?would incur undue burden or expense?; court?s analysis included consideration of whether deleted emails were discoverable (yes) and the need for a protocol to protect the producing party?s privilege, confidential information

Nature of Case: Personal injury resulting from auto accident

Electronic Data Involved: Email

Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 WL 940270 (D. Kan. Mar. 20, 2012)

Dec 01 2012

Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)

Nature of Case: Employment discrimination

Electronic Data Involved: Miscellaneous ESI

FDIC v. Appleton, No. CV-11-476-JAK (PLAx), 2014 WL 10245383 (C.D. Cal. Nov. 29, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced Relativity database with some 700,000 documents culled from its main server using search terms, and defendants complained there was no apparent logic to database and they could not tell what documents were responsive to what requests, court sided with defendants and ordered plaintiff to create files in Relativity into which it would place documents responsive to each particular request

Nature of Case: Receiver brought action against former officers and directors of failed bank

Electronic Data Involved: ESI

Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)

Dec 01 2012

Key Insight: Defendant?s lackluster effort to retrieve e-mail after hard drives crashed constituted a conscious disregard of its preservation obligations that could fairly be described as gross negligence or recklessness, and warranted sanctions in the form of an adverse inference instruction; court declined to impose sanctions for defendant?s failure to preserve telephone recordings since there was insufficient evidence that any relevant calls were actually recorded and should have been preserved

Nature of Case: Consumer Protection Procedures Act claims

Electronic Data Involved: E-mails and telephone call recordings

Tag:Motion to Compel