Motion to Compel – Page 73 – Electronic Discovery Law

Osborne LLC v. C.H. Robinson Co., No. 08 C 50165, 2011 WL 5076267 (N.D. Ill. Oct. 25, 2011)

Dec 01 2011

Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions

Nature of Case: Breach of contract

Electronic Data Involved: ESI

In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?

Electronic Data Involved: Contents of personal computer, storage devices

Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)

Dec 01 2011

Key Insight: Court found no waiver of plaintiff?s claims of privilege resulting from the production of one privileged email where, pursuant to FRE 502(a) the waiver was not intentional as established by the sworn statement of plaintiff?s counsel that he was not aware that the plaintiff?s sister, the other party to the relevant email, was an attorney

Nature of Case: Hostile work environment, retaliation, intentional infliction of emotional distress

Electronic Data Involved: Privileged email

Madere v. Compass Bank, No. A-10-CV-812 LY, 2011 WL 5155643 (W.D. Tex. Oct. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel production of email requiring restoration of backup tapes where defendant?s expert averred that it would cost over $270,000 and require hundreds of hours to accomplish, where plaintiff?s expert could not ?ascertain an estimate for the actual cost,? and where ?even if the actual cost of restoring the backup tapes was only a fraction? of the estimated amount, it ?would still outweigh the amount [Plaintiff] seeks to recover?

Nature of Case: Violation of FMLA

Electronic Data Involved: Emails on backup tapes

Suzlon Energy Ltd. v. Microsoft Corp.,671 F.3d 726(9th Cir. 2011)

Dec 01 2011

Key Insight: In this case, the Ninth Circuit affirmed the decision of the District Court that the Electronic Communications Privacy Act (ECPA) applies to foreign citizens and thus precluded Microsoft Corporation from producing a foreign citizen?s emails, which were stored on its server.

Electronic Data Involved: Emails stored on domestic server

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)

Dec 01 2011

Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance footage

United States v. Tummins, No. 3:10-00009, 2011 WL 2078107 (M.D. Tenn. May 26, 2011)

Dec 01 2011

Key Insight: Court granted motion to compel production of defendant?s hard drive with all child pornography files redacted where the court determined that the likelihood that child pornography would remain on the drive after steps to redact were taken was ?relatively low? and where the government?s inspection accommodations in lieu of production did not provide the statutorily required ?ample opportunity for inspection? where the restrictions on inspection limited the time allowed for inspection and required the forensic examiner to leave his equipment unattended

Nature of Case: Criminal/ possession of child pornography

Electronic Data Involved: Hard drive

Greater Lakes Ambulatory Surgical Ctr., PLLC v. State Farm Mut. Ins. Co., No. 11-11003, 2011 WL 5245141 (E.D. Mich. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where defendant indicated that the requested records were not readily searchable because the information sought was not tracked, that compliance with plaintiffs? request would require manual review of ?hundreds of thousands of claims,? that the claim files were not stored as searchable images, and that the cost of reviewing the claim files could eclipse $100,000, the court concluded that defendant had demonstrated undue burden and denied plaintiffs? motion to compel; court also indicated that plaintiffs could have pursued alternative avenues of discovery where defendant indicated that a third party maintained the information requested but failed to do so and that defendant should not be ?required to engage in labor and resource intensive discovery . . . merely because Plaintiff?s failed to subpoena a third-party . . . .?

Nature of Case: Suit arising from Defendant’s refusal to pay certain charges for services provided to insured

Electronic Data Involved: ESI

Mgmt. Compensation Group Lee, Inc. v. Oklahoma State Univ., No. CIV-11-967-D, 2011 WL 5326262 (W.D. Okla. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where non-party OSU represented that responding to a subpoena seeking 6571 documents would require an expenditure of $1,761.24 and 55 hours of in-house counsel?s time, court found the burden was not so undue as to require protection from compliance and, in so finding, noted OSU?s financial interest in the outcome of the litigation, OSU?s close ties to a party in the case, and the amount in controversy of the underlying litigation (many millions of dollars)

Electronic Data Involved: ESI

Harmon v. Lighthouse Capital Funding, Inc. (In re Harmon), 2011 WL 302859 (Bankr. S.D. Tex. Jan. 26, 2011)

Dec 01 2011

Key Insight: Providing a detailed explanation of defendant?s and counsel?s discovery abuses, including failing to search for internal emails, ignoring plaintiff?s subpoena, and counsel?s offering of ?evasive and unfounded testimony in an effort to rationalize his inexcusable non-production? of certain relevant (and repeatedly requested) documents, among other things, the court denied defendant?s motion for reconsideration and upheld as a sanction the establishment of a particular fact in plaintiff?s favor, namely that Lighthouse did not establish an escrow account in accord with its obligations under its agreement with plaintiffs

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: Emails, bank statements

Tag:Motion to Compel