Motion to Compel – Page 91 – Electronic Discovery Law

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

In re Netbank Sec. Litig., 2009 WL 2461036 (N.D.Ga. Aug. 7, 2009)

Dec 01 2009

Key Insight: Court ordered production of ESI in native format, despite defendants? objections that such production was not required by the federal rules, allowed for the alteration of documents, and prevented bates labeling, among other reasons, where defendants? problems were deemed ?hypothetical? and where plaintiff ?definitively stated? that the provision of TIFF documents both made the review more expensive and served to conceal metadata

Nature of Case: Class action securities litigation

Electronic Data Involved: ESI

Pulse Eng?g. Inc. v. Mascon, Inc., 2009 WL 3234177 (S.D. Cal. Oct. 2, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel production of redacted portions of emails where the emails were prepared in anticipation of litigation and where dissemination to third party with common legal interest did not constitute waiver pursuant to the Common Interest Doctrine (commonality of interested existed where third party was responsible for manufacturing and supplying the allegedly infringing filter)

Nature of Case: Patent infringement

Electronic Data Involved: Portions of privileged emails

Unishippers Global Logistics, LLC v. DHL Express (USA), Inc., 2009 WL 3297817 (D. Utah Oct. 12, 2009)

Dec 01 2009

Key Insight: Where defendant refused to search custodians? user files, network drives, and individual hard drives for responsive ESI but agreed to search custodians? emails and ?all electronic files that are known to contain non-duplicative information? and where defendant provided plaintiff with affidavit evidence of the unlikelihood of discovering relevant non-duplicative evidence in non-email sources, court denied plaintiff?s motion to compel ?unless and until? plaintiff could provide ?some reasonable basis? to require defendant to image and search all electronic files

Nature of Case: Breach of contract

Electronic Data Involved: Non-email ESI

Transcap Assoc., Inc. v. Euler Hermes Am. Credit Indemnity Co., 2009 WL 3260014 (N.D. Ill Oct. 9, 2009)

Dec 01 2009

Key Insight: Where defendant ?produced? archived marketing materials by directing plaintiff to website commonly known as the Way Back Machine (which itself warned of missing links and image in webpages) and did not establish or allege that it maintained material on the Way Back Machine in the ordinary course of business, and where the court determined defendant had not adequately investigated the existence of responsive documents in paper form, court granted motion to compel and ordered defendant to conduct ?a thorough search? for responsive documents and to produce them in paper or electronic format within 14 days; court ordered plaintiff to pay attorneys fees and costs and imposed monetary sanctions against plaintiff for the numerous discovery violations addressed in the opinion

Nature of Case: Insurance coverage action

Electronic Data Involved: Way Back Machine

Commonwealth v. Ruddock, 2009 WL 3400927 (Mass. Sup. Ct. Oct. 2009)

Dec 01 2009

Key Insight: Recognizing that the defendant would be ?severely handicapped? absent expert consultation and finding that requiring defendant?s expert to examine the evidence while in the commonwealth?s custody would burden defendant?s rights to effective assistance of counsel and create the risk that his work product would be accessible to the government, court ordered mirror image of defendant?s hard drive to be produced, but entered a strict protective order limiting its use and dissemination

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

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

SEC v. Strauss, 2009 WL 3459204 (S.D.N.Y. Oct. 28, 2009)

Dec 01 2009

Key Insight: Court found SEC had control of Delloitte & Touche database for purposes of Rule 34 analysis where SEC had both the practical ability and legal right to obtain the working papers contained therein but declined to compel SEC to grant access to defendant where he could obtain independent access to the database himself (by subpoena) and where the access requested would result in ?significant burdens? to SEC, including limiting its own access and interfering with the ability to view files

Nature of Case: Enforcement action for accounting fraud

Electronic Data Involved: Access to database

In re eBay Seller Antitrust Litig., 2009 WL 3613511 (N.D. Cal. Oct. 28, 2009)

Dec 01 2009

Key Insight: Where, in support of its argument that production would be unduly burdensome, eBay provided ?uncertain? estimates of the cost that varied drastically, court held that ?without any clear indication that the costs would be unduly burdensome? the magistrate?s order to compel production was not clearly erroneous; citing Fed. R. 34 for the proposition that the civil rules contemplate the production of information from dynamic databases and case law addressing the same, court held that magistrate did not clearly err in concluding that ?the technical burden to eBay of creating a new dataset for the instant litigation does not excuse production.?

Nature of Case: Antitrust litigation

Electronic Data Involved: Contents of database

Palm Bay Int., Inc. v. Marchesi Di Barolo, S.P.A., 2009 WL 3757054 (E.D.N.Y. Nov. 9, 2009)

Dec 01 2009

Key Insight: Noting a lack of any indication that plaintiff objected to production in electronic format and highlighting the fact that electronic discovery is permitted under the Federal Rules, court ordered production of discovery in electronic format and directed the parties to confer to determine the best method of production; upon defendant’s assertion that plaintiff failed to produce certain relevant communications as evidenced by the production of previously unseen communications by a third party, court declined to impose sanctions absent evidence of bad faith but indicated a willingness to re-open depositions upon defendant?s submission of subjects to be pursued therein

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Tag:Motion to Compel