Motion to Compel – Page 94 – Electronic Discovery Law

Newman v. Borders, 257 F.R.D. 1 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where defendant?s 30(b)(6) deponent did not have sufficient knowledge of defendant?s document and email retention policies or how searches of its electronically stored information were conducted and where the parties could not reach agreement regarding the proper disclosure or production of such information, court denied plaintiff?s request to take additional depositions and ordered defendant to submit an affidavit responding to nine questions crafted by the court aimed at disclosing the disputed information

Nature of Case: Race discrimination

Electronic Data Involved: Information about email and document retention and seach methodology

U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)

Dec 01 2009

Key Insight: Court granted motion to compel production of emails stored for less than 181 days in web-based email account pursuant to government?s trial subpoena upon finding that such emails were not stored for purposes of back up protection and thus not in ?electronic storage? pursuant to The Stored Communications Act such that a warrant was required

Nature of Case: Child pornography

Electronic Data Involved: Previously opened emails stored for less than 181 days in web-based account

Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009)

Dec 01 2009

Key Insight: Court ordered third party, AOL, to show cause why it should not be held in contempt for failing to provide a response to defendant?s motion to compel as ordered by the court and gave leave to defendant to commence discovery on AOL?s ability to retrieve requested emails, among other topics, following contradictory representations from AOL and plaintiff regarding the same; court also noted plaintiff?s grant of permission to AOL to produce his emails and that defendant?s subpoena had been appropriately limited as to scope and thus ordered AOL to produce all responsive emails to plaintiff for review prior to production to defendant

Nature of Case: Civil rights action

Electronic Data Involved: Email

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

Said Zaid v. Obama, 616 F.Supp.2d 119 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where respondents argued that the exculpatory information sought was not ?reasonably available? under the relevant section of the case management order because several separate searches would be required in order to access all relevant databases, court stated that respondents appeared to misinterpret the relevant section to require production of ?easily available? information rather than ?reasonably available? information and granted petitioner?s motion to enforce the case management order and to allow searching of the relevant databases pursuant thereto

Electronic Data Involved: Database information accessed through Intellink search tool

Rohm and Hass, Co. v. Dow Chem., Co., 2009 WL 537195 (Del. Ch. Feb. 26, 2009) (Unpublished)

Dec 01 2009

Key Insight: Chancellor denied motion to compel production of Litigation Support Model program designed to assist defendant in settlement analysis where program was prepared in anticipation of litigation and where plaintiff failed to establish necessary showing of substantial need or the inability to obtain the substantial equivalent elsewhere; recognizing sensitive nature of Enterprise Model program used for corporate decision making and strategy, court denied defendants motion for a protective order but ordered plaintiffs to limit disclosure of that material to essential persons and ordered experts to certify their understanding of the limitations of the information?s use and their obligation of confidentiality prior to viewing the information

Nature of Case: Breach of contract

Electronic Data Involved: Dynamic program models

Earp v. Peters, 2009 WL 1444707 (W.D.N.C. May 21, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s motion to compel copy of copyrighted software used by defendant?s expert to create an illustrative animated exhibit where defendants produced all underlying data and a copy of the final exhibit to plaintiff and provided their experts for multiple depositions and where defendants argued they could not be compelled to produce a copyrighted software ?simply to spare Plaintiff the expense of acquiring the software or the services of an animator?

Nature of Case: Personal injury

Electronic Data Involved: Copyrighted software used to create illustrative animation

Boyer v. Gildea, 2009 WL 230646 (N.D. Ind. Jan. 29, 2009)

Dec 01 2009

Key Insight: Finding emails between trustee?s former and current counsel and an email between current counsel and a fact witness subject to protection from disclosure under the work production doctrine and noting defendant?s failure to assert substantial need or inability to obtain equivalent materials by other means, court denied defendant?s motion to compel production of the emails at issue

Nature of Case: Adversary proceeding alleging statutory violations by entering into agreement to control price of auction assets

Electronic Data Involved: Emails

State Farm Ins. Co. v. Policherla, 2009 WL 2170183 (E.D. Mich. July 20, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion to quash third party subpoena upon finding defendants? could claim no viable privacy interest and thus lacked standing and where plaintiff?s showing of relevance outweighed defendants? claims of harm; court granted plaintiff?s motion to compel claim related information, despite acknowledgement of defendants? burden, where plaintiff established the relevance of such data, but ordered a sampling of the requested data while reserving plaintiff?s prerogative to make a showing that additional disclosure would be productive

Nature of Case: RICO

Electronic Data Involved: ESI

Zenith Elecs., Inc. v. Vizio, Inc., 2009 WL 3094889 (S.D.N.Y. Sept. 25, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel production of documents by non-party pursuant to subpoena where court determined non-party did not have control of the documents requested because such documents were maintained by foreign parent company and non-party did not have access to them in the ordinary course of business

Nature of Case: Patent infringement

Electronic Data Involved: ESI, source code

Tag:Motion to Compel