Motion to Compel – Page 79 – Electronic Discovery Law

State v. Norris, 236 P.3d 225 (Wash. Ct. App. 2010)

Dec 01 2010

Key Insight: Where State refused to produce images to be used against defendant in court and, to avoid being subject to subpoena, gave possession of the evidence to the federal government who was not subject to subpoena, the appellate court granted defendant?s petition for discretionary review, stayed the trial court?s proceedings, and held that the Adam Walsh Act (a federal statue restricting copying and distribution of image of child pornography in federal court proceedings) does not preempt state law requiring full disclosure of the State?s evidence; the case was remanded for further proceedings

Nature of Case: Sex offenses against minors

Electronic Data Involved: Hard drive, copies of electronic images

Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish the existence of a duty to preserve at the time of defendants? destruction of ESI; court denied defendants? motion for spoliation sanctions where defendants failed to establish the relevance of the emails at issue or any prejudice resulting from plaintiff?s failure to produce certain emails, particularly where defendant possessed its own copies; court denied defendants? motion to compel inspection of plaintiff?s computer but acknowledged their right to explore plaintiff?s preservation practices at deposition and ordered plaintiff to make a mirror image of her hard drive to be left in the custody of her attorney to assure preservation of ESI

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, hard drive

Trusz v. USB Realty Investors LLC, 2010 WL 3583064 (D. Conn. Sept. 7, 2010)

Dec 01 2010

Key Insight: Where plaintiff accused defendant of a ?document dump? in the wake of its production of 4,004,183 pages of documents and where defendants argued that the high volume was a result of plaintiff?s overbroad discovery requests, the court reasoned that the issue could have been avoided had counsel conferred to refine search terms and ordered the parties to confer in good faith to reach agreement regarding reducing the volume of discovery and that absent agreement, a special master would be appointed

Nature of Case: Claims arising from alleged concealment of overvaluing real estate investments

Electronic Data Involved: ESI

Smith v. James C. Hormel School of the Va. Inst. of Autism, 2010 WL 3702528 (W.D. Va. Sept. 14, 2010)

Dec 01 2010

Key Insight: Court declined to find privilege was waived as the result of a significant delay in identifying withheld privileged communications where defendants were aware that the pro se plaintiffs had consulted with counsel but failed to follow up regarding the existence of privileged communications, where defendants were not prejudiced by the delay, and where the court found no evidence of bad faith, but, noting that one plaintiff was a lawyer and should have known of the disclosure requirements, imposed a monetary sanction equal to defendant?s fees and costs for bringing the motion to compel

Nature of Case: Alleged violation of the Individuals with Disabilities Education Act

Electronic Data Involved: Privileged emails

Biax Corp. v. Nvidia Corp., 2010 WL 3777540 (D. Colo. Sept. 21, 2010)

Dec 01 2010

Key Insight: In an opinion addressing numerous discovery issues, the court granted in part plaintiff?s motion to compel and ordered the parties to submit a status report, preferably jointly, proposing a discreet number of proposed custodians and search terms, and to submit a joint-cost sharing agreement ?for the hefty cost of searching electronic files as represented by [defendant] with an accompanying affidavit in support of the anticipated costs?; court reasoned in footnote that ?justice require[ed]? cost sharing in light of the expense of searching electronic files and in light of the amount of documentation already produced by the defendant

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Trickey v. Kaman Indus. Technologies Corp., 2010 WL 3892228 (E.D. Mo. Sept. 29, 2010)

Dec 01 2010

Key Insight: Where plaintiff suspected defendants of withholding responsive emails and sought to compel defendants to explain their preservation and production efforts and to produce all responsive ESI, court found defendants? explanation of its discovery efforts insufficient to determine whether they had satisfied their obligations where defendants failed to answer questions such as what happens to emails that are ?manually persevered? by individual custodians, the method of preservation employed by defendants (e.g. retaining existing storage archives, creating a mirror image of computer systems), and the availability of backup copies of data from an allegedly stolen laptop, and ordered defendants to provide such information, among other things, and to provide a copy of the police report ?presumably? filed for the stolen laptop

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

State of California ex rel Fowler v. Caremark RX, LLC, 2010 WL 3991298 (Cal. Ct. App. Oct. 13, 2010):

Dec 01 2010

Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal

Nature of Case: Violation of False Claims Act

Electronic Data Involved: Archived ESI

Hennigan v. Gen. Elec. Co., 2010 WL 4189033 (E.D. Mich. Aug. 3, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to compel production of data related to certain product defects and ordered defendant to bear plaintiff?s costs incurred for the 30(b)(6) deposition which revealed the existence of accessible, relevant information upon finding that both defendant and counsel failed to take reasonable efforts to locate responsive information; court ordered defendant?s to conduct searches using plaintiffs? proposed terms where the information sought was relevant and where defendant?s proposed terms were too narrow to identify all responsive information

Nature of Case: Product liability

Electronic Data Involved: Incident reports

Romero v. Allstate, 2010 WL 4138693 (E.D. Pa. Oct. 21, 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? request for production of documents in native format and rejected defendants? arguments that plaintiffs must show a ?particularized need? for metadata where ?multiple courts? have held the burden falls to the objecting party to establish hardship or expense and where defendants failed to show how such a production would negatively impact them and noted that were such a showing necessary, plaintiff would have satisfied it; court ordered parties to meet and confer regarding the search terms, additional custodians, and other ?essential details about [defendants?] search methodology? going forward but declined to compel defendant to disclosure the methods utilized for past searching where such an order would result in undue burden to defendants; court declined to compel defendants to certify that they had complied with their discovery obligations absent evidence of spoliation

Nature of Case: Class action

Electronic Data Involved: ESI, metadata

Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010)

Dec 01 2010

Key Insight: Citing plaintiff?s failure to raise the issue of electronic discovery at the discovery conference, her failure to request ESI in discovery, and the lack of hardship in reviewing hard copy produced by defendants, the court generally denied plaintiff?s request to compel production of ESI in native format but, as to an evaluation of plaintiff, the court compelled the production of metadata and reasoned that the revelation of the date created and whether it was modified could be pivotal for the plaintiff

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Tag:Motion to Compel