Motion to Compel – Page 94 – Electronic Discovery Law

Donnelly v. NCO Fin. Sys., Inc., 2009 WL 5551377 (N.D. Ill. Dec. 16, 2009)

Dec 01 2009

Key Insight: Court granted motion to compel defendant to produce a list of all persons it called on cellular telephones within particular area codes, despite defendant?s claim that such production would be unduly burdensome and minimally probative and that it would need to create special programs to extract the information which would take ?several hundred hours,? where court determined plaintiff?s need for the information outweighed the burden in producing it

Nature of Case: Class action

Electronic Data Involved: ESI

Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365 (D. Va. 2009)

Dec 01 2009

Key Insight: Where plaintiff failed to issue a litigation hold, court ordered plaintiff to issue a litigation hold as to those personnel likely to possess discoverable evidence and to file a sworn declaration describing whether any files had been lost, the methods use to determine the existence of such a loss, the extend of the loss, and the nature of the litigation hold placed in response to the present order; court found plaintiff?s production of documents ?problematic? where it failed to organize the production according to Rule 34 and ordered plaintiff to ?amend? its production to comply; acknowledging that ?the identities of those in control of certain documents is information that may be as relevant as the documents? [substance]?, court ordered search and production of President?s documents despite claims that those documents were produced from other custodians

Nature of Case: Patent infringement

Electronic Data Involved: ESI

United States v. Haymond, 2009 WL 2835398 (D. Okla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Where law requires denial of a request to copy or reproduce child pornography as long as the material is made ?reasonably available? to defendant and where defendant?s expert claimed an inability to locate the alleged illegal images on the forensic copy of the hard drive to which he was provided access, court indicated reticence to order the production of ?file data? to assist in the location of relevant images on the drive, but ordered defendant?s expert to instead coordinate access to the previously provided copy and for the government to assist his efforts by providing ?software keys? in there possession ? if effort failed, court indicated willingness to consider ordering production of the requested ?sector and file? information to assist defendant?s expert?s examination

Nature of Case: Child pornography

Electronic Data Involved: Images on hard drive

Whatman v. Davin, 2009 WL 4808807 (D.S.C. Dec. 9, 2009)

Dec 01 2009

Key Insight: Where defendant?s employee admitted to using her personal computer to work from home and plaintiff thereafter sought to compel defendant?s production of that computer, court found that ?plaintiff?s informal request for a forensic copy of [employee?s] personal home computer does not impose upon the defendants the burden of producing property outside its possession and control? and therefore denied plaintiff?s motion to compel

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Employee’s personal computer

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

In re Rail Freight Surcharge Antitrust Litig., 2009 WL 3443563 (D.D.C. Oct. 23, 2009)

Dec 01 2009

Key Insight: Where defendants argued against treating in house counsel as ?normal custodians? for purposes of collection and production because the burden of reviewing potentially responsive information for privilege was high and the likely benefit of any material produced minimal, but where the parties had already agreed on a ?filter? which would automatically ?log? any ESI hit by certain privileged terms, court ordered ESI production to go forward but delayed review and production of hard copy until the extent of the burden could be determined and indicated hope that ?we will be able to devise a method of reviewing the hard copies for privilege without the necessity of a log? noting that ?I have all too often found the traditional privilege log useless.?

Nature of Case: Antitrust litigation

Electronic Data Involved: ESI

Brown v. Coleman, 2009 WL 2877602 (S.D.N.Y. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where expert witness destroyed relevant surgical logs and resisted production of alternative evidence upon the objection that a review of all patient files would be unduly burdensome, court denied motion to compel production of the logs but ordered that as a sanction for spoliation, the expert would not be allowed to testify as to the number of fat grafting procedures he had performed, and would have to be qualified as an expert based on other information

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical records

Hope for Families & Cmty. Servs., Inc. v. Warren, 2009 WL 1066525 (M.D. Ala. Apr. 21, 2009)

Dec 01 2009

Key Insight: Court found emails withheld by non-party independent contractor were protected by attorney-client privilege (and work product in some cases) where independent contractor acted as representative of plaintiff for purpose of securing bingo license from the county and was authorized to communicate with counsel on plaintiff?s behalf, among other things, and where the subject communications satisfied the five-prong test borrowed from the ?corporate employee context? requiring that the communication was made for the purpose of securing legal advice for the corporation, at the direction of the corporation, that the subject of the communication was within the scope of the independent contractor?s duties, and that the communication was not disseminated beyond persons needing to know its contents; court found common interest doctrine applicable where non-party and plaintiff?s interests were identical pursuant to the terms of their consulting contract and the nature of their relationship

Lawson v. Sun Microsystems, Inc., 2009 WL 499014 (S.D. Ind. Feb. 26, 2009)

Dec 01 2009

Key Insight: Where plaintiff denied wrongdoing resulting from its efforts to access password-protected files containing attorney-client material produced to plaintiff in discovery and relied in part on counsel?s approval of those actions, court ordered emails between plaintiff and counsel produced based on plaintiff?s reliance on those discussions and the ?need to unearth what actually transpired?; court indicated belief that intrusion into the attorney-client privilege was minimized by court?s en camera review of the emails before rendering its decision

Nature of Case: Action for unpaid commission

Zhang v. Ing Direct, 2009 WL 234487 (D. Del. Jan. 29, 2009)

Dec 01 2009

Key Insight: Where, in response to request for documents indicating an effort to find work, defendant produced a list of emails and screen shots from his computer, but not the emails themselves, court found defendants response inadequate and ordered production of all relevant documents in his possession

Electronic Data Involved: Emails

Tag:Motion to Compel