Motion to Compel – Page 67 – Electronic Discovery Law

Thermotek, Inc. v. Orthoflex, Inc., No. 3:11-cv-870-D (BF), 2015 WL 4138722 (N.D. Tex. July 7, 2012)

Dec 01 2012

Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000

Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud

Electronic Data Involved: ESI, including QUickbooks

Commercial Law Corp., P.C., v. Fed. Deposit Ins. Corp., NO. 10-13275, 2012 WL 137835 (E.D. Mich. Jan. 18, 2012)

Dec 01 2012

Key Insight: Finding metadata related to documents at issue was relevant to the action and that a forensic search of the computers used to generate the documents was ?an appropriate method to locate and extract that information,? but recognizing that at least one of the computers belonged to an attorney, court fashioned a protocol that allowed for forensic examination of the computers while simultaneously protecting potentially privileged information thereon

Electronic Data Involved: Metadata

Annex Books, Inc. v. City if Indianapolis, No. 1:03-cv-SEB-TAB, 2012 WL 892170 (S.D. Ind. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where plaintiff was unable to produce requested ?bookkeeping data? in a manner that was usable by defendants despite significant efforts to do so (including retaining two computer forensic services, spending over $9500 on 30 hour of work, and purchasing QuickBooks Pro in an attempt to export the relevant data), the court found that plaintiff had demonstrated that the data was not reasonably accessible but also found that defendant had demonstrated good cause for seeking the information and ordered defendant to bear the costs of additional efforts (noting that it was ?unreasonable? for defendant to insist on production in QuickBooks format when incompatibility had been established)

Electronic Data Involved: ESI

Eisai v. Sanofi-Aventis U.S., LLC, No. 08-4168 (MLC), 2012 WL 1299379 (D.N.J. Apr. 16, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motions to compel discovery from an additional 175 custodians and an additional 27 custodians (two separate requests) upon its determination that the requests were cumulative or duplicative and that the burden outweighed the potential benefit; of note was the significant expenditures of the defendants on already-produced discovery and the volumes produced as well as the estimated cost of the additional requested discovery, where the estimated burden of producing the additional 175 custodians was 140,00 hours of manpower and roughly $15 million dollars?an amount that exceeded the expected value of plaintiff?s claim

Electronic Data Involved: ESI from 200+ custodians

Excel Gold Products, Inc. v. MacNeill Eng?g Co., Inc., No. 11 C 1928, 2012 WL 1570772 (May 3, 2012)

Dec 01 2012

Key Insight: Despite finding that plaintiff had not produced sufficient information regarding its review procedures to establish that reasonable steps were taken to prevent inadvertent disclosure of privileged information, the court found that concerns of ?overriding fairness? precluded waiver where plaintiff had attempted to enter into a clawback agreement and where defense counsel?s rejection of such an agreement (because there was a protective order) could ?readily? have been interpreted to mean that inadvertently produced materials would be returned without dispute; plaintiff was ordered to conduct privilege review of documents produced, to the extent not already done

Electronic Data Involved: Inadvertently produced ESI

Fisher v. Fisher, No. WDQ-11-11038, 2012 WL 2050785 (D. Md. June 5, 2012)

Dec 01 2012

Key Insight: After carefully laying out the law surrounding document requests/productions, court evaluated plaintiff?s motion to compel and, invoking principles of proportionality, granted in part and denied in part the motion

Electronic Data Involved: ESI

FTC v. Johnson, No. 2:10-cv-02203-RLH-GWF, 2012 WL 2138108 (D. Nev. June 12, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced documents as kept in the usual course of business and labeled some documents to correspond to certain requests and where plaintiff included ?a searchable concordance and an index that identifies the document?s source, description, and date range? the court found that the production complied with Rule 34 and denied defendant?s motion to compel plaintiff to ?respond to the requests for production of documents with organized and related responses?

Electronic Data Involved: ESI

Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)

Dec 01 2012

Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion

Electronic Data Involved: 40-year old magnetic tapes

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454 (D.N.M. Aug. 9, 2012)

Dec 01 2012

Key Insight: Court addressed a myriad of discovery disputes related to privilege logs, format of production, adequacy of plaintiff?s search for responsive materials, and the adequacy of its responses to defendant?s requests and ruled, among other things, that: plaintiff?s production in PDF was unacceptable and that production must be in native format or in the format requested by defendant and that plaintiff?s counsel?s statements (related to the court by sworn affidavit from defendant) were sufficient to put the adequacy of his compliance with Rule 26(g) in question and require production of plaintiff?s search strategy, including its interaction with counsel; court also compelled responses to a myriad of individual requests and ordered plaintiff to pay 80% of defendant?s fees in bringing this motion

Electronic Data Involved: ESI

Chen v. New Trend Apparel, No. 11 Civ. 324 (GBD) (MHD), 2012 WL 4784855 (S.D.N.Y. Oct. 2, 2012)

Dec 01 2012

Key Insight: Court denied motion to compel inspection of defendants? computers reasoning that such inspections are granted only under limited circumstances ?when there is reason to believe that a litigant has tampered with the computer or hidden relevant materials despite demand for them in the course of the lawsuit or when the possession or use of the computer is an element of the parties’ claims or defenses? and further reasoning that movants made no showing to justify their request, particularly where certain information they sought had already been provided

Electronic Data Involved: Hard drives

Tag:Motion to Compel