Motion to Compel – Page 92 – Electronic Discovery Law

Assoc. Press v. Canterbury, 688 S.E.2d 317 (W. Va. 2009)

Dec 01 2009

Key Insight: Finding that ?a personal email communication made by a public official or public employee, which does not related to the conduct of the public?s business, is not a public record subject to disclosure under FOIA,? West Virginia?s Supreme Court of Appeals reversed in part a lower court ruling compelling the production of five personal emails pursuant to West Virginia?s Freedom of Information Act (FOIA)

Nature of Case: Freedom of Information Request (FOIA)

Electronic Data Involved: Emails

U.S. v. Dunning, 2009 WL 2815739 (D. Ariz. Nov. 12, 2009)

Dec 01 2009

Key Insight: Court denied defendant?s motion to compel production of ?information that is located in the unallocated or deleted space? of the relevant hard drive where defendant was in possession of ?precisely the same images of the hard drives? that the plaintiff possessed, where plaintiff was not in possession, custody, or control of information not already produced to defendant, and where ?Defendant [was] just as capable as the Government is of extracting the information for trial.?

Nature of Case: Criminal

Electronic Data Involved: Data from unallocated space on hard drive

Beyer v. Medico Ins. Group, 2009 WL 3817211 (D.S.D. Nov. 13, 2009)

Dec 01 2009

Key Insight: Where defendant claimed responding to discovery would require searching 200,000 claim files but where court determined defendant could sort claims files using specific codes, court found defendant?s assertions ?disingenuous? and ordered production of the requested files; where defendant claimed search remained unduly burdensome because of need to convert certain files to allow text searching, court reasoned that ?the fact that answering [request for relevant discovery] will be burdensome and expensive is not in itself a reason for the court?s refusing to order discovery which is otherwise appropriate? and ordered the production of all documents describing defendant?s electronic means of searching and all software used during the relevant timeframe (as requested by plaintiff) if defendant persisted in claiming an inability to search electronically as a basis for refusing to answer discovery

Nature of Case: Bad faith denial of insurance claims

Electronic Data Involved: Electronic claim files

Bennett v. Martin, 2009 WL 4048111 (Ohio Ct. App. Nov. 24, 2009)

Dec 01 2009

Key Insight: Where defendants failed to adequately respond to discovery in defiance of two court orders, trial court did not abuse its discretion in ordering forensic imaging of certain of defendants? hard drives to ensure that all responsive documents had been produced but erred in ?not providing adequate protections to safeguard the confidentiality? of defendants? information; case was remanded to the trial court for consideration of the protocol described by the appellate court, i.e., the retention of an independent expert to retrieve potentially responsive files to be reviewed by the producing party before production to ensure protection of confidentiality and privilege

Nature of Case: Age discrimination

Electronic Data Involved: ESI, hard drives

Benedict College v. Nat?l Credit Systs., 2009 WL 3839473 (D.S.C. Nov. 16, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s claims that discovery was produced as maintained in the usual course of business where documents were printed, copied, bates labeled and then converted to .pdf format and defendant?s objections that plaintiff?s requests were overly broad and burdensome, court granted plaintiff?s motion to compel and ordered defendant to produce all responsive documents, organized and labeled according to each request, and to produce to plaintiff and the court a ?faithful electronic copy? of its relevant database with metadata intact to allow for inspection if the need arose; doubting the sufficiency of defendant?s production of email, court ordered company?s president to order a diligent search for responsive documents and to certify by affidavit (using language provided by the court) that such a search was conducted and to provide an explanation for any missing or unfound documents

Nature of Case: Beach of contract

Electronic Data Involved: ESI, emails

In re Boxer Mgmt. Co., 2009 WL 4250123 (Tex. Ct. App. Sept. 3, 2009)

Dec 01 2009

Key Insight: Court of appeals conditionally granted petition for writ of mandamus and directed the trial court to vacate its order compelling the deposition of defendant?s corporate representative regarding the adequacy of defendant?s response to discovery (using specific question approved by the trial court) where such inquiry would concern the mental impressions of general counsel responsible for discovery (and the likely deponent) which are subject to work product protection; court also determined that absent evidence of discovery abuse, the deposition would constitute an impermissible fishing expedition

Nature of Case: Premesis liability

Electronic Data Involved: ESI

Laethem Equip. Co. v. Deere & Co., 2009 WL 4069279 (E.D. Mich. Nov. 23, 2009)

Dec 01 2009

Key Insight: Where upon the court?s order to produced any privileged documents not properly and timely logged plaintiff produced only certain documents and redacted others, and where plaintiff explained that the withheld and redacted documents were duplicates of documents previously determined to be privileged by the court, court denied defendant?s motion to compel and stated: ?Where a written communication is found to be protected by the attorney-client privilege, an identical copy of that document, when challenged, ought to yield the same result, despite a different indexing number for the copy. To treat identical copies of the same document differently based solely on the numerical designation in a data log elevates form over substance in the worst way.?

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

Electronic Data Involved: Privileged materials

U.S. v. Cameron, 2009 WL 4544928 (D. Me. Nov. 30, 2009)

Dec 01 2009

Key Insight: Where following an order to produce relevant laptops for defendant?s expert to examine the government represented its lack of custody of such laptops, save one, and that the laptop in its possession did not contain relevant evidence but did contain materials statutorily prohibited from dissemination, court amended order to explicitly relieve the Government of the obligation to produce materials not in its possession or to produce the laptop containing materials restricted from dissemination by statute; court?s opinion explicitly affirmed defendant?s right to question the Government regarding its failure to preserve and to bring any newly discovered evidence to the court?s attention

Nature of Case: Criminal

Electronic Data Involved: Hard drive

Carolina Materials, LLC v. Continental Cas. Co., 2009 WL 4611519 (W.D.N.C. Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production

Nature of Case: Insurance contract dispute

Electronic Data Involved: ESI on relevant computers and servers

Comrie v. Ipsco, 2009 WL 4403364 (N.D. Ill. Nov. 30, 2009)

Dec 01 2009

Key Insight: Where defendants claimed a privileged email was inadvertently produced and thus protected from waiver but failed to support their assertion with facts, court ruled defendants failed to meet their burden of proving that the disclosure was inadvertent or that they took reasonable steps to prevent such disclosure and that privilege was therefore waived; court also found that the email fell within the fiduciary exception to privilege

Nature of Case: Claims brought pursuant to Employee Retirement Income Security Act (ERISA)

Electronic Data Involved: Privileged email

Tag:Motion to Compel