Motion to Compel – Page 77 – Electronic Discovery Law

State v. Durham, 2010 WL 1254355 (Ohio App. Ct. Apr. 1, 2010)

Dec 01 2010

Key Insight: Where defendant appealed his conviction and argued the State?s failure to preserve videotape depicting a struggle between police and defendant was a violation of due process, court found the videotape was not subject to production pursuant to Brady absent evidence that it contained ?materially exculpatory evidence?, and that absent evidence of bad faith, defendant could not show a due process violation arising from the destruction of ?potentially useful? evidence

Nature of Case: Criminal

Electronic Data Involved: Surveillance video

Palm Bay Int., Inc. v. Marchesi Di Barolo S.P.A., 2010 WL 1688203 (E.D.N.Y. Apr. 26, 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to produce 15 emails (which were discovered in a productions from third parties), court declined to find that plaintiff had waived its objections to defendant?s request but ordered plaintiff to file an affidavit from a representative with first hand knowledge of how the search was undertaken providing ?a specific explanation of what information was discovered concerning how and why the email at issue were not picked up during the course of that search? and noted that defendant was free to raise the failure to produce those emails with the witnesses at trial

Nature of Case: Breach of contract

Electronic Data Involved: Emails

Eurand, Inc. v. Mylan Pharm., Inc., 266 F.R.D. 79 (D. Del. 2010)

Dec 01 2010

Key Insight: Evaluating the adequacy of plaintiff?s search for a specific category of information, the court noted that the test to determine the appropriateness of a search is whether the search ?could?have been expected to produce the information requested?, determined that the information sought was likely to be found in the emails of the inventors of a specific patent, and ordered plaintiff to search the emails of the relevant inventors within a date range prescribed by the court; opinion included brief discussion of keyword searching and noted, “[n]either lawyers nor judges are generally qualified to opine that certain search terms or files are more or less likely to produce information than those keywords or data actually used or reviewed.”

Nature of Case: Patent litigation

Electronic Data Involved: Emails

Arista Records LLC v. Doe 3, 604 F.3d 110(2nd Cir. 2010)

Dec 01 2010

Key Insight: Rejecting defendant?s First Amendment arguments, court affirmed rulings of the lower courts denying defendant?s motion to quash a subpoena seeking disclosure of his identity where defendant was suspected of copyright infringement online, namely unlawfully sharing copyrighted materials

Nature of Case: Copyright infringement (file sharing)

Electronic Data Involved: Name of ISP subscriber

Holland v. Barfield, 35 So.3d 953 (Fla. Dist. Ct. App. 2010)

Dec 01 2010

Key Insight: Appellate court granted writ of certiorari and quashed lower court?s order compelling petitioner?s production of her hard drives and SIM card for inspection by respondent where there was no evidence of destruction of data or threat of destruction sufficient to support such an order, where the order did not protect petitioner against disclosure of confidential or privileged materials because petitioner was provided no opportunity to review materials prior to production, and where there were less intrusive means to acquire the data sought

Nature of Case: Wrongful death

Electronic Data Involved: Hard drives, cell phone (SIM card)

Nissan N.Am., Inc. v. Johnson Elec. N. Am., Inc., 2010 WL 1790354 (E.D. Mich. May 5, 2010)

Dec 01 2010

Key Insight: Upon defendant?s motion to compel pursuant to Fed. R. Civ. P. 26(b)(2)(B), court ordered plaintiff to supplement its discovery to specifically identify sources of ESI claimed to be ?not reasonably accessible? and to provide the anticipated costs and efforts involved in retrieving that ESI

Nature of Case: Defective design of air conditioner components leading to recall

Electronic Data Involved: Not reasonably accessible ESI

Phillip M. Adams & Assoc., LLC v. Fujitsu Ltd., 2010 WL 1901776 (D. Utah May 10, 2010)

Dec 01 2010

Key Insight: Addressing a number of issues related to the format and organization of plaintiff?s production and a motion to compel plaintiff?s response to interrogatories, court ordered the production of ESI in its native format where plaintiff failed to object to a request for the same but, where native production was not specified, plaintiff was allowed to select the form of production; unable to determine whether the burden of production of computer data from all computers used by plaintiff over a period of many years would outweigh the value of production, court ordered plaintiff to produce a detailed inventory of each computer and to allow sampling of one or two computers of defendant?s choice in order to determine the need for additional discovery

Nature of Case: Patent infringement

Electronic Data Involved: ESI, hard drives

N. Am. Rescue Prods., Inc. v. Bound Tree Med., LLC, 2010 WL 1873291 (S.D. Ohio May 10, 2010)

Dec 01 2010

Key Insight: Addressing several privilege-related issues upon plaintiff?s objections to the magistrate?s order compelling production, court found inadvertently produced email communications resulted in waiver of attorney-client privilege where plaintiffs failed to take reasonable steps to prevent disclosure and to rectify the error upon discovery of the production, noting specifically that plaintiff was aware of the production for a matter of months before taking action only after defendant?s motion to compel

Nature of Case: Misappropriation of trade secrets, false advertising, trademark infringement and related claims

Electronic Data Involved: Privileged emails

Ross v. Abercrombie & Fitch Co, 2010 WL 1957802 (S.D. Ohio May 14, 2010)

Dec 01 2010

Key Insight: Where defendant resisted plaintiff?s motion to compel additional searching based upon having already conducted an initial, agreed-upon keyword search and upon unsubstantiated claims that additional searching would be unduly burdensome regardless of prior efforts, court rejected defendant?s arguments absent a sufficient showing of burden, granted plaintiff?s motion, and ordered the parties to meet and confer to reach agreement regarding the searches

Nature of Case: Securities class action

Electronic Data Involved: ESI

Perry v. Schwarzenegger, 2010 WL 1135781 (N.D. Cal. Mar. 22, 2010)

Dec 01 2010

Key Insight: Addressing several objections to the magistrate?s order compelling production of data from non-parties, court held that despite ?minimal? showing of relevance, magistrate did not err in ordering production of data where magistrate weighed the relevance of the data against the burden alleged and ordered appropriate steps to reduce the burden, including limiting the review of documents to those hit by a small set of search terms, waiving respondents? obligations to produce a privilege log, and allowing one respondent to search only its central server rather than 75 individual hard drives following that respondents? showing of undue burden; court rejected petitioner?s objections to the measures taken to reduce the non-parties? burdens

Nature of Case: Litigation surround California’s Proposition 8

Electronic Data Involved: ESI

Tag:Motion to Compel