Motion to Compel – Page 87 – Electronic Discovery Law

United States v. Haymond, 2009 WL 2835398 (D. Okla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Where law requires denial of a request to copy or reproduce child pornography as long as the material is made ?reasonably available? to defendant and where defendant?s expert claimed an inability to locate the alleged illegal images on the forensic copy of the hard drive to which he was provided access, court indicated reticence to order the production of ?file data? to assist in the location of relevant images on the drive, but ordered defendant?s expert to instead coordinate access to the previously provided copy and for the government to assist his efforts by providing ?software keys? in there possession ? if effort failed, court indicated willingness to consider ordering production of the requested ?sector and file? information to assist defendant?s expert?s examination

Nature of Case: Child pornography

Electronic Data Involved: Images on hard drive

Grasso v. Bakko, 2009 WL 224022 (W.D. Wis. Jan. 29, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel inspection of plaintiff?s computer, despite plaintiff?s conflicting statements regarding the existence of a contract in 2005 and defendant?s resulting belief that plaintiff created the contract on her computer years later, where court determined the inspection would be unduly burdensome and where plaintiff carried the burden to prove the contract existed in 2005, not defendant

Electronic Data Involved: Hard drive

High Voltage Beverages, LLC v. Coca-Cola Co. 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where defendant represented that any additional searching would only result in the discovery and production of duplicative documents, court denied plaintiff?s motion to compel defendant to search an identified alternative source upon finding ?that requiring defendant to sift sand for documents it has already produced would be unreasonably duplicative of earlier efforts and that the material contained therein is likely available from other sources, to wit, an earlier production of documents?

Electronic Data Involved: ESI

Knights Armament Co. v. Optical Sys. Tech., Inc., 2009 WL 331608 (M.D. Fla. Feb. 10, 2009)

Dec 01 2009

Key Insight: Finding that defendant?s delay in producing a privilege log and the insufficiency of the entries therein supported a finding of waiver, court nonetheless declined to impose the ?extreme sanction? of waiver as to the actual privileged communications but held that defendants had failed to establish that the attached ?preexisting business records? were privileged or protected and ordered the them produced

Nature of Case: Trademark infringement, false advertising, unfair competition, and other claims

Electronic Data Involved: Emails

Plew v. Ltd. Brands, Inc., 2009WL 1119414 (S.D.N.Y. Apr. 23, 2009)

Dec 01 2009

Key Insight: Denying plaintiff?s motion to compel, court rejected plaintiff?s argument that emails sent to and from a non-party could not be protected as work product where email exchanges occurred at the behest of counsel, because of the relevant litigation, and where there was no indication that the communications were likely to be revealed to plaintiff or any other adversary of the defendant

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Ashman v. Solectron Corp, 2009 WL 1684725 (N.D. Cal. June 12, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where court ordered plaintiff to return documents retained improperly following termination of his employment but allowed him to utilize any such documents produced by defendant in the ?normal course of discovery? and where defendant argued that it need not produce the documents returned by plaintiff if it could not find the documents in its own system as such documents were outside the scope of ?normal? discovery, court ordered defendant to produce the non-privileged and relevant documents because they were within defendant?s ?legal possession, custody and control? and thus subject to disclosure

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Brodsky v. Humana, Inc., 2009 WL 1956450 (N.D. Ill. July 8, 2009)

Dec 01 2009

Key Insight: Addressing whether certain of plaintiff?s requests were unduly burdensome relative to the likely benefit of production, court granted in part and denied in party plaintiff?s motion to compel upon determining that certain requests were unduly burdensome in light of the estimated time and effort to respond

Nature of Case: Violations of Telephone Consumer Protection Act

Electronic Data Involved: ESI, mirror image drives

Moore v. Napolitano, 2009 WL 2450280 (Aug. 7, 2009 D.D.C.)

Dec 01 2009

Key Insight: Where defendant objected to magistrate judge?s order ?to do what the [Rules] already require in no uncertain terms, and that is to search for the responsive documents and produce them? (where defendant had unilaterally decided not to look for ESI), court rejected defendant?s objections, including her argument of undue burden, where plaintiffs? use of broad language did not automatically render them overbroad and where declarations in support of the alleged burden were ?largely conclusory?, where magistrate?s order (and Federal Rules) did not require futile searching where it was clear no documents would be found (after good faith inquiry), and where defendant offered only speculation that her search would result in ?needless duplication?

Nature of Case: Employment discrimination action

Electronic Data Involved: ESI

Rhoades v. Young Women?s Christian Assoc. of Greater Pittsburgh, 2009 WL 3319820 (W.D. Pa. Oct. 14, 2009)

Dec 01 2009

Key Insight: Where defendant inadvertently produced 4 privileged documents (among over 1600 total) as the result of an administrative error following a careful review of the documents for production and where defendants sought the return of those document only five days later, court found privilege had not been waived; court found request for ?versions of all emails sent by or to Plaintiff? and several other persons unduly burdensome where the request covered more than seven years of email and did not specify the topics of the information sought

Nature of Case: Violations of Equal Pay Act and Fair Labor Standards Act

Electronic Data Involved: ESI, Privileged ESI

Consolidated Rail Corp. v. Grand Trunk W. R.R. Co., 2009 WL 5151745 (E.D. Mich. Dec. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s production of 1200 pages ?as they were kept in the normal course of business? was sufficient pursuant to Rule 34 where plaintiff ?identified the document custodians and the range of Bates number for each custodian?s set of documents, along with the date associated with document creation,? where documents were produced in the order they were found on each hard drive, and where email attachments were produced directly following the corresponding email; plaintiff?s failure to arrange emails chronologically was not fatal to plaintiff?s production

Nature of Case: Declaratory judgment action, breach of contract

Electronic Data Involved: ESI, email

Tag:Motion to Compel