Motion to Compel – Page 80 – Electronic Discovery Law

Howell Educ. Assoc. MEA/NEA v. Howell Board of Educ., 2010 WL 290515 (Jan. 26, 2010)

Dec 01 2010

Key Insight: Reversing the trial court, appellate court found personal emails retained on public school?s email system were not public records and therefore not subject to disclosure pursuant to Michigan?s Freedom of Information Act; court also concluded that violation of an acceptable use policy that does not expressly provide that emails are subject to FOIA does not render personal emails subject to disclosure pursuant to FOIA

Nature of Case: FOIA

Electronic Data Involved: Personal emails

In re Hecker, 2010 WL 654151 (Bankr. D. Minn. Feb. 23, 2010)

Dec 01 2010

Key Insight: Where debtor committed numerous discovery violations including making misrepresentations to the court regarding his possession of relevant ESI and the completeness of his productions, among other things, and where debtor ?intentionally withheld relevant, admissible evidence in order to delay and obfuscate?, court granted plaintiff?s motion for default judgment after finding that ?no lesser sanction would result in defendant?s compliance?

Nature of Case: Adversary proceeding in bankruptcy

Electronic Data Involved: ESI

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

Mt. Hawley Ins. Co. v. Felman Prod. Inc., 2010 WL 3294389 (S.D. W. Va. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendants sought production from 10 foreign custodians alleged to be agents of the plaintiff, the court conducted an extensive review of evidence as to each persons? involvement with the plaintiff and the applicable case law from several jurisdictions and found as to 9 of the custodians that they maintained relevant information and that plaintiff exercised sufficient control of that information, in light of the custodian?s significant involvement with plaintiff?s business, that the information should be produced; in so holding, the court rejected plaintiff?s arguments that the discovery sought had already been produced, was not under their control, was cumulative and duplicative, and was unduly costly and burdensome to produce

Nature of Case: Claims arising from failure of tranformer for silicomanganese furnace

Electronic Data Involved: ESI in custody of foreign custodians

DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Dec 01 2010

Key Insight: Court ordered third-party to conduct additional searching for ESI and for counsel to meet and confer in person to determine the proper scope of the search, search terms, etc. and ordered that the costs of future discovery be split, except with respect to the third party?s search of its former CEO?s data, where that CEO had a practice of deleting email on a daily basis to avoid discovery

Nature of Case: Breach of fiduciary duty, tortious interference with business expectancy, breach of contract

Electronic Data Involved: ESI, backup tapes

Mitchell Eng?g. v. City of San Francisco, 2010 WL 2951856 (N.D. Cal. July 27, 2010)

Dec 01 2010

Key Insight: Where plaintiff offered to produce hard copy ?job files? for non-city projects as an alternative to conducting key word searching of 25 custodians to identify emails related to non-city projects but where defendant objected that hard copy was less searchable and would not contain all relevant emails, court denied defendant?s motion to compel keyword searching and production of ESI citing the more than two month delay since the issue was first raised, the close proximity of trial, and the court?s inability to determine the relevance of the 188 proposed search terms and ordered plaintiff?s production of hard copy files

Electronic Data Involved: Emails, ESI, hard copy

United States v. Perraud, 2010 WL 228013 (S.D. Fla. Jan. 14, 2010)

Dec 01 2010

Key Insight: Despite finding Fed. R. Crim. P. 16 did not require the government to identify the evidence upon which it intended to rely at trial where defendants claimed the government had attempted to overwhelm them by providing access to a database containing millions of documents, and despite government?s production of an index to the database and directions to the materials it deemed most relevant, magistrate recommended the government be ordered to provide defendants with an exhibit list and hard copies of the exhibits ten days before trial, for the government to supplement that list as necessary, and for the government to comply in good faith where the government had previously offered to supply the same

Nature of Case: Conspiracy to destroy records and destruction of records

Electronic Data Involved: ESI

Sunnen Prods. Co. v. Travelers Casualty and Surety Co. of Am., 2010 WL 743663 (E.D. Mo. Feb. 25, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought discovery regarding similar insurance policies, claims and lawsuits of other insureds, court found the information ?discoverable? and rejected defendant?s claims of undue burden based on alleged inability to conduct an electronic search citing a prior court decision (involving defendant and similar claims of burden) for the proposition that plaintiff would not be denied discovery because of defendant?s election ?to have inadequate mens [sic] of accessing data?

Nature of Case: Insurance litigation

Electronic Data Involved: ESI

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)

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Tag:Motion to Compel