Motion to Compel – Page 69 – Electronic Discovery Law

Hock Foods, Inc. v. William Blair & Co., LLC, No. 09-2588-KHV, 2011 WL 884446 (D. Kan. Mar. 11, 2011)

Dec 01 2011

Key Insight: Based upon affidavits of defendant?s General Counsel and Litigation Technology Project Manager identifying the burden of responding to plaintiff?s requests for production, including potentially searching 12,786 boxes of hardcopy and 12 terabytes of data, court denied motion to compel but ordered defendant to provide a supplemental response to plaintiff?s request after conducting less burdensome searches and encouraged cooperation to agree upon what those searches would entail; court also denied motion to compel additional searching for particular issues where defendant estimated the cost of search per gigabyte at between $100 and $300 with a total resulting cost of between $1.2 million and $3.6 million

Nature of Case: Dispute regarding proper payment pursuant to contract

Electronic Data Involved: ESI

Diesel Mach., Inc. v. Manitowoc Crane, Inc., No. CIV 09-4087-RAL, 2011 WL 677458 (D.S.D. Feb 16, 2011)

Dec 01 2011

Key Insight: Where parties had an agreement to produce in native format which the court had approved and adopted but later agreed that defendant could produce some information in hard copy (in light of defendant?s representation that hard copy production could be more quickly accomplished prior to pending depositions), the court found the parties agreement to produce in native format was modified and declined to compel re-production citing the burden and expense (including duplication of time and expense of conducting redactions, for example)

Nature of Case: Breach of contract and claims arising from South Dakota Dealer Protection Act

Electronic Data Involved: ESI produced in hard copy

U.S. Holdings, Inc. v. Suntrust Bank, No. 09-23222-CIV, 2011 WL 1102822 (S.D. Fla. Mar. 23, 2011)

Dec 01 2011

Key Insight: Where Bates labeling documents already produced in native format would have required defendants to convert the documents to an alternative format and would have cost between $16,000 and $75,000, the court denied plaintiff?s motion to compel Bates labeling, despite the requirement to do so as laid out in the Discovery Practices Handbook appended to the local rules in the Southern District of Florida

Nature of Case: Breach of fiduciary duty, negligence, fraud in the inducement, etc.

Electronic Data Involved: ESI in native format

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350 (W.D.N.Y. 2011)

Dec 01 2011

Key Insight: Where, in response to the at-issue request for production, defendant failed to identify its archives as a source of information that it would not search or to object to plaintiff?s request and, in fact, represented that it would produce responsive information, court found the information sought was relevant, that plaintiff?s motion was timely, and ordered defendant to search its archives upon rejecting defendant?s untimely assertions of undue burden and cost

Nature of Case: Breach of contract, claims under the Communications Act, and various tort claims

Electronic Data Involved: Archived emails

Hudson v. AIH Receivable Mgmt. Servs. LLC, No 10-2287-JAR-KGG, 2011 WL 1402224 (D. Kan. Apr. 13, 2011)

Dec 01 2011

Key Insight: Where defendant, ?a small company with 13 employees? who presented evidence that it was not profitable, objected to discovery pursuant to 26(b)(2)(C)(iii) based on an estimated cost of $2,630 to comply with plaintiff?s request (which included, in part, the cost of necessary software to complete the review), the court declined to shift the cost of production but stated that defendant could choose to produce un-reviewed ESI to plaintiff, thus shifting the cost of software necessary for review, but if defendant wished to review the data first, it would bear the costs of doing so

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Miami-Dade Cnty. v. Johnson Controls, Inc., No. 10-20881-CIV, 2011 WL 1548969 (S.D. Fla. Apr. 21, 2011)

Dec 01 2011

Key Insight: Where 3rd party established the burden of responding to defendant?s subpoena, including that compliance would result in a total cost of approximately $118,000, the court ordered defendant to bear the reasonable cost of the 3rd party?s compliance with the subpoena, subject to the conditions set forth by the court

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Larkin v. Trinity Lighting, Inc., No. 3:10cv109-TSL-MTP, 2011 WL 1496248 (D. Miss. Apr. 20, 2011)

Dec 01 2011

Key Insight: Where questions remained as to whether plaintiff deleted files from his work laptop in bad faith before returning it, whether defendant suffered any prejudice as a result and whether the information sought to be forensically retrieved was likely to be of any substantial benefit, court denied defendant?s motion to compel restoration of the laptop at plaintiff?s expense, but concluded that defendant could retrieve the information at its own costs if it so chose

Nature of Case: Claims alleging failure to pay bonus payment

Electronic Data Involved: ESI

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

Int?l Med. Group, Inc. v. Walker, No. 1:08-cv-923-JMS-TAB, 2011 WL 1752101 (S.D. Ind. May 9, 2011)

Dec 01 2011

Key Insight: Where relevant evidence found on defendants? hard drive ?challenge[d]? defendants? prior assertions that they had not retained copies of certain communications and defendant Walker?s ?self characterization as a peripheral observer?, the court concluded that Plaintiff had made a prima facie showing of fraud and that defendants therefore waived their attorney-client privilege as to communications with counsel regarding: ?preservation, destruction, or location of documents or discussion of discovery obligations?

Nature of Case: Conspiracy to defame and tortuously interfere with business relationships

Electronic Data Involved: ESI

CNX Gas Co. LLC v. Miller Petroleum, Inc., No. E2009-00226-COA-R3-CV, 2011 WL 1849082 (Tenn. Ct. App. May 11, 2011)

Dec 01 2011

Key Insight: Appellate court affirmed lower court?s order that shifted defendant?s costs related to the production and review of electronic discovery subject to plaintiff?s motion to compel where defendant provided ?specific facts? presented in an affidavit of its IT personnel that demonstrated that the ?electronic documents requested by CNX created an undue burden because those documents required an additional review to prevent the disclosure of privileged information? and where it was within the trial court?s discretion to ?tailor? the discovery requests, including by shifting costs

Nature of Case: Suit arising from dispute related to oil and gas leases

Electronic Data Involved: ESI

Tag:Motion to Compel