Motion to Compel – Page 97 – Electronic Discovery Law

Mintel Int?l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D. Ill Apr. 17, 2009)

Dec 01 2009

Key Insight: District Court found Magistrate Judge?s decisions denying plaintiff?s motions to compel third-party?s production of forensic image of its computer systems or a report from those systems ?were neither clearly erroneous or contrary to law? where Magistrate denied the motions in light of plaintiffs lack of diligence, contradictory opinions from experts, and factual evidence indicating a minimal amount of relevant data on third-party?s system and where Magistrate was therefore within the scope of her discretion

Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract

Electronic Data Involved: ESI, forensic image of hard drive

S. Yuba River Citizens League v. Nat?l Fisheries Serv., 2009 WL 1287919 (E.D. Cal. May 6, 2009)

Dec 01 2009

Key Insight: Adopting the majority rule requiring the disclosure of ?all things communicated to [a testifying expert] and considered by the expert in forming his opinion? even if otherwise protected as work product, court established that the test for discoverability was ?whether the documents reviewed or generated by the expert could reasonably be viewed as germane to the subject matter on which the expert has offered an opinion? and ordered production of emails between counsel and testifying expert discussing the declaration or its content and also ordered the production of all previous drafts of expert?s declaration

Nature of Case: Alleged violations of Endangered Species Act

Electronic Data Involved: Drafts of testifying expert’s declarations and emails regarding same between expert and counsel

Mancia v. Mayflower Textile Servs. Co., 2009 WL 2252151 (D. Md. July 28, 2009)

Dec 01 2009

Key Insight: Where plaintiffs presented evidence of defendants? discovery violations, including defendants? failure to produce all relevant evidence in its possession and ?using computers to generate records for some plaintiffs ?in a piecemeal fashion??, among other things, court granted plaintiffs motion to compel and also scheduled show cause hearing for defendants to show why the court should not order as a sanction ?that Plaintiffs be permitted, at the expense of [the defendants] and their counsel, to have access to a mirror image, forensic copy of the electronically stored information of [the defendants] in order to search for documents responsive to their production requests?

Nature of Case: Violations of the Fair Labor Standards Act

Electronic Data Involved: ESI

In re Netbank Sec. Litig., 2009 WL 2461036 (N.D.Ga. Aug. 7, 2009)

Dec 01 2009

Key Insight: Court ordered production of ESI in native format, despite defendants? objections that such production was not required by the federal rules, allowed for the alteration of documents, and prevented bates labeling, among other reasons, where defendants? problems were deemed ?hypothetical? and where plaintiff ?definitively stated? that the provision of TIFF documents both made the review more expensive and served to conceal metadata

Nature of Case: Class action securities litigation

Electronic Data Involved: ESI

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

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

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

Baxter Healthcare Corp. v. Fresenius Med. Care Holding, Inc., 2008 WL 5214283 (N.D. Cal. Dec. 12, 2008)

Dec 01 2008

Key Insight: Where defendant offered to produce a witness to authenticate a ?manageable number of documents? that plaintiffs would ?actually use at trial?, court denied plaintiffs? motion to compel production of a witness knowledgeable enough to authenticate thousands of documents and more than 580 CD-Rom discs of electronic files and source code and concluded that plaintiffs? motion was ?unreasonable and not supported by either the rules or the law?

Electronic Data Involved: ESI

Karim v. Natural Stone Indus., Inc., 2008 WL 429627 (N.Y. Sup. Ct. Jan. 18, 2008)

Dec 01 2008

Key Insight: Where computer hard drive was not relevant and material to plaintiff’s ability to return to employment, evidence regarding plaintiff?s employability was ascertainable by other means, and it would be impossible to discern plaintiff?s computer usage beyond the use testified to at deposition given that several members of plaintiff’s household also used the computer, court denied as improperly invasive third-party defendant?s request for a ?clone? of plaintiff’s home computer hard drive

Nature of Case: Injured construction worker sued for violations of New York Labor Law and for common law negligence

Electronic Data Involved: Plaintiff’s home computer

Matthews v. Baumhaft, 2008 WL 2224126 (E.D. Mich. May 29, 2008)

Dec 01 2008

Key Insight: District judge upheld as neither clearly erroneous nor contrary to law magistrate judge?s order for forensic imaging of defendants’ computers, where defendants had refused to provide documents plaintiff requested, providing only “sample” appraisals, and where relevant appraisals and software used to generate appraisals resided in computer and were relevant to parties’ claims and defenses

Nature of Case: Fraud, RICO and breach of fiduciary duty claims

Electronic Data Involved: Appraisals and software used to generate appraisals

Tag:Motion to Compel