Motion to Compel – Page 95 – Electronic Discovery Law

Am. Family Mut. Ins., Co. v. Roth, 2009 WL 982788 (N.D. Ill. Feb. 20, 2009)

Dec 01 2009

Key Insight: Where defendant discarded a hard drive that had been ordered produced for inspection, court rejected evidence of defendant?s lack of ?know-how? or ?resources? to maintain the hard drive in light of the lack of expense or effort required beyond physical retention and held defendant in contempt of court; court also found grounds for contempt where evidence ordered destroyed or turned over to plaintiffs was discovered on defendants? hard drives upon forensic inspection; where plaintiffs presented ?clear and convincing evidence? that defendants intentionally destroyed evidence by discarding relevant hard drives subject to a duty to preserve, court found spoliation had occurred and ordered an adverse inference instruction but declined to order default judgment where prejudice did not render plaintiffs unable to prove their case

Nature of Case: Misappropriation of customer information

Electronic Data Involved: Hard drives, ESI

Averett v. Honda of Am. Mfg., Inc., 2009 WL 799638 (S.D. Ohio Mar. 24, 2009)

Dec 01 2009

Key Insight: Where the burden of searching all possible locations for a mention of plaintiff was overly burdensome in light of plaintiff?s 17 year history with the company and the unlikely possibility that additional relevant information would be discovered and where plaintiff failed to identify with particularity any documents she believed to exist or category of information likely to contain relevant information, among other things, court denied plaintiff?s motion to compel, citing Fed. R. Civ. P. 26(b)(2)

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

State v. Bernini, 2009 WL 922471 (Ariz. Ct. App. Apr. 7, 2009)

Dec 01 2009

Key Insight: Court of Appeals found ?[t]he respondent judge erred as a matter of law and abused her discretion in ordering the state to produce source code material for the Intoxilyzer 8000 that it did not possess and had been unable to obtain, without any evidence the state had “better access” than defendants to what CMI maintains are trade secrets? and vacated trial court?s order directing the state to obtain the requested code

Nature of Case: Consolidated appeal of defendants charged with DUI

Electronic Data Involved: Source code of Intoxilyzer 8000

Ojeda-Sanchez v. Bland Farms LLC, 2009 WL 2365976 (S.D. Ga. July 31, 2009)

Dec 01 2009

Key Insight: In unpaid wages case, court ordered production of data from database in native format ?so that the metadata [could] be examined,? where plaintiffs demonstrated a particular need for the information, i.e., the need to determine how workers? pay was calculated; court excused defendants from the need to produce the information in Excel format to the extent the files requested were too large to export

Nature of Case: Unpaid wages

Electronic Data Involved: ESI from database

Unishippers Global Logistics, LLC v. DHL Express (USA), Inc., 2009 WL 3297817 (D. Utah Oct. 12, 2009)

Dec 01 2009

Key Insight: Where defendant refused to search custodians? user files, network drives, and individual hard drives for responsive ESI but agreed to search custodians? emails and ?all electronic files that are known to contain non-duplicative information? and where defendant provided plaintiff with affidavit evidence of the unlikelihood of discovering relevant non-duplicative evidence in non-email sources, court denied plaintiff?s motion to compel ?unless and until? plaintiff could provide ?some reasonable basis? to require defendant to image and search all electronic files

Nature of Case: Breach of contract

Electronic Data Involved: Non-email ESI

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

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

Clubcom, LLC v. Captive Media, Inc., 2009 WL 1885712 (W.D. Pa. June 30, 2009)

Dec 01 2009

Key Insight: Where four privileged emails were produced among 4000 documents (in hard copy), where there was no indication that plaintiff produced the documents intentionally or failed to take reasonable precautions to prevent disclosure, and where plaintiff immediately took reasonable steps to rectify the error, court ruled privilege was not waived pursuant to Fed. R. Evid. 502(b)

Electronic Data Involved: Privileged emails

United States v. Cinergy, Corp., 2009 WL 6327414 (S.D. Ind. Nov. 10, 2009)

Dec 01 2009

Key Insight: Inadvertent production of privileged material by third party pursuant to subpoena waived defendants? privilege protection where third party?s disclosure was found to be tantamount to defendant?s disclosure because of the nature of their relationship and where defense counsel failed to take any steps to prevent the production of privileged materials despite being asked specifically if privilege issues were implicated in the production (to which he answered ?no?) and despite the low volume of materials produced; court noted that although there was no legal obligation for defendants to conduct a post-production review, ?had [they] done so, they might well have noticed the email at issue before Plaintiffs did, and the result in this case might have been different.?

Electronic Data Involved: Privileged email

Casual Living Worldwide v. Lane Furniture Idus. Inc., 2009 WL 37162 (W.D. Ky. Jan. 6, 2009)

Dec 01 2009

Key Insight: Court ordered defendant to produce email sent to a foreign supplier despite objection that email was privileged where foreign supplier did not have the required commonality of interest to preserve the privilege i.e., ?a shared legal interest? but rather, only a possible ?common business interest?namely, that the Defendant be allowed to continue to produce the alleged infringing furniture??

Nature of Case: Patent infringement

Electronic Data Involved: Email

Tag:Motion to Compel