Motion to Compel – Page 92 – Electronic Discovery Law

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

Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480 (Fed. Cl. Aug. 28, 2009)

Dec 01 2009

Key Insight: In this long discovery opinion, court conducted waiver analysis pursuant to Fed. R. Evid. 502 of 8 documents and found that privilege had been waived as to each document for a myriad of reasons including: a finding that production was not inadvertent where the document(s) at issue had been produced (via FOIA or discovery response) on more than one occasion, defendants failure to adequately establish the measures taken to prevent the disclosure of the document(s) at issue, defendants failure to adequately object to the use of the document(s) at deposition, and defendants failure to request the return of the document(s) following discovery of their production or to take other measures to rectify disclosure

Nature of Case: Breach of contract and taking without just compensation

Electronic Data Involved: Privileged emails and hard copy

Snoznik v. Jeld-Wen, 259 F.R.D. 217 (W.D.N.C. 2009)

Dec 01 2009

Key Insight: Where testifying expert created and utilized electronic templates which he considered proprietary to create his report, court granted expert?s motion for a protective order and declined to compel production of the templates upon finding that the templates were not relevant to the actual issues at trial, that the defendant failed to show a need for the templates in light of expert?s production of underlying data used to create his report, that the expert properly sought a protective order to address the issues of confidentiality, and that the potential harm to the expert outweighed the potential (non-existent) harm to defendant

Nature of Case: Negligence, breach of implied warranty and express warranty and loss of consortium

Electronic Data Involved: Electronic templates used to create expert report

Schuler v. Invensys Bldg. Sys., Inc., 2009 WL 425821 (E.D. Wis. Feb. 20, 2009)

Dec 01 2009

Key Insight: Finding emails or portions of emails withheld were subject to protection by the attorney-client privilege or work product doctrine, court denied plaintiff?s motion to compel their production; court?s reasoning included discussion of the propriety of withholding email headers and held that redaction of email headers was proper where such headers provided information including: ?the topic of discussion between certain people, the identities of those people, and the time at which the discussion took place.?

Electronic Data Involved: Emails

United Consumers Club, Inc. v. Prime Time Mktg. Mgmt., Inc., 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009)

Dec 01 2009

Key Insight: Where request for production was unduly burdensome in light of the cost of production and necessary labor to comply, despite the requesting party?s attempt to narrow the scope, and where the court found the request overly broad and that it sought information irrelevant to the litigation, court declined to compel production in response to the particular request, but granted in part other portions of the motion to compel

Electronic Data Involved: ESI

Cimaglia v. Union Pac. R.R. Co., 2009 387266 (C.D. Ill. Feb. 13, 2009)

Dec 01 2009

Key Insight: Court denied plaintiffs? motion for preservation order and immediate production of data related to 2009 railroad crossing failure, finding that 2009 data was not relevant to 2004 incident at issue in light of defendants? lack of intention to present evidence that the system could not fail, and where court found 2009 data was not relevant to rebut defendants? assertions regarding lack of failure in 2004 or admissible to establish ?a routine practice of willful conduct?

Nature of Case: Train collision

Electronic Data Involved: Electronic copies of downloads from event recorders at railroad crossing

In re Application of Michael Wilson & Partners, Ltd., 2009 WL 119374 (D. Colo. Apr. 30, 2009)

Dec 01 2009

Key Insight: Reasoning that electronic storage devices ?perform the same function as did a file cabinet in the pre-electronic era? and that they must therefore be searched ?just as they would have had to do had all the information been printed out and stored in hard copy format? and also reasoning that ?[t]he fact that duplicate documents may have been stored and maintained in more than one place is irrelevant to the duty to search all locations,? court ordered respondents to subpoenas to conduct additional searches of all electronic storage devices in their possession at the time of their response; where the sharing of production costs had been ordered, court required requesting party to post $1 million pre-judgment cost bond in light of the ?circumstances of the case? including respondents? expenditure of more than $2.5 million and fears that the requesting party would dispute their share and attempt to avoid payment

Nature of Case: Litigation between an international law firm and a new firm comprised of its former employees related to the new firm?s alleged interference in business relationships and breach of certain duties

Electronic Data Involved: ESI

Dunkin? Donuts Franchised Rests. LLC v. Grand Cent. Donuts, Inc., 2009 WL 1750348 (E.D.N.Y. June 19, 2009)

Dec 01 2009

Key Insight: Finding the information sought to be ?largely relevant and discoverable,? court granted defendants? motions to compel in part and ordered parties to meet and confer to develop a ?workable search protocol to obtain the information sought by the defendants in light of what was discussed at the motion hearing?; specifically, the court noted that defendants? proposed terms could be ?narrowed temporally? and that the scope of the terms could be tailored to individual employees identified by defendants and ordered defendants to provide plaintiffs with a list of employees whose email they wanted searched and the specific terms to be used for each person

Nature of Case: Action to enforce termination of franchise agreement alleging breach of contract and trademark infringement

Electronic Data Involved: Emails

In re Intel Microprocessor Antitrust Litig., 2009 WL 2030967 (D. Del. July 7, 2009)

Dec 01 2009

Key Insight: Court adopted Special Master?s Report and Recommendation requiring plaintiffs to respond to questions regarding the scope of their efforts with regard to the restoration of backup tapes upon finding that such information was not protected by the attorney-client privilege

Nature of Case: Antitrust litigation

Electronic Data Involved: Backup tapes, ESI

Covad Commc?ns Co. v. Revonet, Inc., 2009 WL 5377698 (D.D.C. Aug. 25, 2009)

Dec 01 2009

Key Insight: Where plaintiff represented that defendant had not fulfilled production obligations pursuant to the court?s order, court ordered defendant to respond to questions as to the completeness of its production and other related topics and affirmed its prior order requiring the re-production of 35,000 pages of emails previously produced in hard copy, despite the alleged burden of doing so; court also ordered defendant to respond to questions regarding the production of ESI, including spreadsheets, previously produced in hard copy and noted, ?Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.?

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: ESI

Tag:Motion to Compel