Motion to Compel – Page 93 – Electronic Discovery Law

In re McKesson Governmental Entities Average Wholesale Price Litig., 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where government agency objected to defendants? subpoena for the production of documents previously produced in a separate litigation on grounds of undue burden and cost based on the assertion that it needed to re-review all documents prior to production because some documents were subject to the deliberative process privilege and others were highly confidential, court held that the privilege had been waived by the agency?s failure to object in its initial response and by the production in separate litigation, ordered the documents produced under the POD ?Confidential, For Outside Attorney Eyes Only? and ordered defendants to bear the costs ?of copying and producing the documents in electronic form?

Nature of Case: Allegations that defendants artificially increased the published price of prescription drugs

Electronic Data Involved: ESI previously produced in separate litigation and maintained in database by third party

Ergo Licensing, LLC v. Carefusion 303, Inc., 263 F.R.D. 40 (D. Me. 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege as to 31 pages of inadvertently produced documents (out of 540) where plaintiff took reasonable precautions to prevent the disclosure, including conducting a multi-part privilege review, and where plaintiff acted promptly to rectify the inadvertent production as soon as it became aware of it; in so holding, court rejected defendant?s assertions that plaintiff?s failure to ?independently recognize? the error in production had bearing on the issue and that fairness weighed in favor of waiver where the documents directly supported its defense

Nature of Case: Patent ligitation

Electronic Data Involved: Privileged email, 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

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

Convertino v. U.S. Dep?t of Justice, 674 F. Supp. 2d 97(D.D.C. 2009)

Dec 01 2009

Key Insight: Emails between employee and counsel using work computer were protected as privileged where employer did not ban personal use of the company email and where employee was unaware of employer?s regular access to his emails and thus had a reasonable expectation of privacy; privilege was not waived, despite employer?s access to the emails, where employee had ?no intention of allowing?his employer, to read the emails? and disclosure was thus inadvertent and where he took reasonable steps to prevent disclosure by deleting the emails as they came into his account and by filing a motion to intervene to assert the privilege upon learning of his employer?s possession of the emails and their possible disclosure in litigation

Nature of Case: Violations of Privacy Act

Electronic Data Involved: Privileged emails

David v. Signal Int. LLC, 2009 WL 5215326 (E.D. La. Dec. 28, 2009)

Dec 01 2009

Key Insight: Where pro se defendant failed to assert the attorney client privilege when such information was sought and ?selectively disclosed? such information despite warnings from his former counsel, court found defendant had waived the attorney-client privilege as to communications with counsel; addressing defendant?s argument that his disclosures were ?mistakes? (and thus inadvertently produced) court noted defendant?s failure to seek the return of the confidential communications, his lack of effort to ?rectify or withdraw? any of his deposition disclosures, and that the disclosures occurred following warning from counsel and therefore found that ?any argument?that he inadvertently disclosed confidential communications?lacks merit.?

Nature of Case: Class action

Electronic Data Involved: Privileged communications

Sajda v. Brewton, 2009 WL 4061356 (N.D. Ind. Nov. 20, 2009)

Dec 01 2009

Key Insight: Court granted in part motion to compel documents withheld as privileged where plaintiff sought the “sideswipe report” created by defendants following the relevant accident and where the court found the report had been prepared in the ordinary course of business and was not therefore protected as privileged; as to the computer template used to generate the report, the court found ?the computer template?appears to be a regularly generated report? and thus was not subject to attorney-client or work product protection; court declined to compel production of the ?DOT Accident Register? where such production was prohibited by statute

Nature of Case: Personal injury

Electronic Data Involved: ESI

Bayview Loan Servicing, LLC v. Boland, 2009 WL 2424448 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where plaintiff responded to discovery by producing large quantities of documents on CD (which had been indexed and arranged by topic and subtopic) and directing defendants that the documents sought were contained thereon, court found the response was ?sufficient? as to the ?general requests? but that ?where Defendant asked for more specific information, Plaintiff is required to identify which document on the CDs in which loan files are responsive in order to comply with Rule 33(d)(1)? and ordered plaintiff to provide ?more complete and specific responses? to certain Interrogatories and Requests for Production

Nature of Case: Claims arising from alleged default on loan repayment

Electronic Data Involved: ESI

Bass v. Miss Porter?s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009)

Dec 01 2009

Key Insight: Upon in camera review of all documents produced to plaintiff by Facebook pursuant to subpoena, and in response to plaintiff?s objection to producing all such documents on the grounds that many were irrelevant and immaterial, court found ?no meaningful distinction? between the pages produced and the pages withheld and stated that ?Facebook usage depicts a snapshot of the user?s relationship and state of mind at the time of the content?s posting? and that ?relevance is more in the eye of the beholder? such that production should not be limited to plaintiff?s determination of what may be ?reasonably calculated to lead to the discovery of admissible evidence? and ordered the production of all documents produced by Facebook to defendants, rather than the smaller subset previously provided

Nature of Case: Claims arising from alleged bullying and harassment of private school student

Electronic Data Involved: Facebook

Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009)

Dec 01 2009

Key Insight: Where, when producing voluminous documents in response to Fed. R. Civ. P. 33 they must be accompanied by indices ?to guide the interrogating party to the responsive documents? and where ?rules applicable to producing documents under Rule 33(d) are generally applicable to Rule 34?, court ordered defendant to provide more detailed responses to plaintiffs requests for discovery upon defendants? production of 7000 pages and indication that ?all 7000 pages of documents were responsive to each request?; court reasoned, ?Defendant’s claims that the documents are sufficiently organized because they are bates-stamped and scanned into a CD-ROM are unavailing. Defendant did not refer to specific bates numbers when it responded to the discovery requests at issue, and the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant’s duty to sufficiently identify the location of the relevant documents.?

Nature of Case: Breach of faith and breach of fiduciary duty

Electronic Data Involved: ESI

Tag:Motion to Compel