Motion to Compel – Page 98 – Electronic Discovery Law

Sedona Corp. v. Open Solutions, Inc., 249 F.R.D. 19 (D. Conn. 2008)

Dec 01 2008

Key Insight: Where plaintiff argued that defendant’s search for responsive documents was insufficient insofar as it was limited to search of computers of seven employees listed in defendant’s Rule 26(a) disclosure using five search terms, and defendant represented that: (1) it searched records of employees who were principally involved with project, (2) it used search terms that would reasonably lead to responsive documents without also producing volumes of unrelated documents, (3) in addition to conducting computer-based search, it also asked employees to search their electronic and physical records; (4) there were no other locations where responsive documents might be located; and (5) it did not have any backup tapes to search as its attempts to restore lost data had failed, court found defendant had conducted reasonable search for responsive documents and denied plaintiff?s motion to compel broader search

Nature of Case: Contract dispute

Electronic Data Involved: Email and other ESI

Mich. First Credit Union v. CUMIS Ins. Soc., Inc., 2008 WL 2915077 (E.D. Mich. July 22, 2008)

Dec 01 2008

Key Insight: District court overruled plaintiff?s objections to magistrate judge?s order denying sanctions and clarifying that defendant was not required to produce ESI in ?native format? or to produce metadata, where limited evidentiary value of producing ?native format? documents with accompanying metadata was outweighed by overly burdensome task of generating such documents

Nature of Case: Breach of insurance contract, unfair trade practices

Electronic Data Involved: APEX files, Lotus Notes email files, and Microsoft Office spreadsheet files

CBT Flint Partners, LLC v. Return Path, Inc., 2008 WL 4441920 (N.D. Ga. August 7, 2008)

Dec 01 2008

Key Insight: Where plaintiff moved to compel production of essentially every document in defendant?s possession, failed to engage in meaningful meet and confer discussions, repeatedly ?filled the record with invective? and made misrepresentations to court, and where defendant had produced in native format over 1.4 million pages of documents as result of electronic search using plaintiff?s 102 search terms in addition to numerous versions of source code and paper documents, and was in substantial compliance with discovery at time of hearing, and where court had previously imposed cost shifting by ordering production of certain documents contingent upon plaintiff bearing $300,000 of defendant?s privilege review expense, court further ruled that defendant was entitled, under Rule 37(a)(5), to an additional $86,787 representing 75 percent of its attorneys’ fees incurred in connection with the discovery dispute

Nature of Case: Patent infringement

Electronic Data Involved: Email, ESI

Dong Ah Tire & Rubber Co., Ltd. V. Glasforms, Inc., 2008 WL 4786671 (N.D. Cal. Oct. 29, 2008)

Dec 01 2008

Key Insight: Where defendants failed to establish custodians? possession of relevant emails beyond speculation or vague assertions, and where responding party already produced ?voluminous amounts of email,? court declined to compel production of emails from either custodian

Nature of Case: Breach of contract (non-conforming goods)

Electronic Data Involved: Emails

Brokaw v. Salt Lake County, 2008 WL 5449065 (D. Utah Dec. 30, 2008)

Dec 01 2008

Key Insight: Despite court?s acknowledgment of the requested data?s relevance, plaintiff?s offer to provide a technical expert to perform the search, and plaintiff?s proffer of at least three alternative search protocols, court denied plaintiff?s motion to compel a school district to search for specified terms in the databases of all its schools where court found that the proposed discovery imposed an excessive burden due to the district?s lack of technical resources and where plaintiff?s proposals failed to sufficiently lessen that burden

Nature of Case: Complaint alleges unreasonable seizure of high school student and use of excessive force resulting in permanent injuries

Electronic Data Involved: Computer databases at all school’s in district

Am. Express Co. v. Goetz, 515 F.3d 156 (2nd Cir. 2008)

Dec 01 2008

Key Insight: Second Circuit found no error in trial court’s order denying plaintiff’s request to examine in their entirety numerous computer hard drives belonging to Ogilvy and American Express employees and granting the request only to the extent it involved electronic records pertinent to disputed dates of creation of two documents, since plaintiff failed to show any error in district court’s determination that ?such wholesale rummaging? through American Express’s electronic records was not appropriate

Nature of Case: Trademark infringement and misappropriation

Electronic Data Involved: Computer hard drives of employees of American Express and Ogilvy who worked on a particular ad campaign

Baird v. Dept. of the Army, 517 F.3d 1345 (Fed. Cir. 2008)

Dec 01 2008

Key Insight: Finding that administrative judge abused his discretion in refusing to compel production of relevant email, and given defendant?s ?lax attitude? towards compliance with plaintiff?s discovery requests, court vacated final decision of Board and remanded case to Board, to be remanded to administrative law judge with directions to order defendant to promptly produce all relevant emails and to assure that all relevant personnel either had already, or will promptly, produce all relevant emails; if such production of email resulted in further evidence to support Baird’s theory, administrative judge to afford Baird another hearing

Nature of Case: Civilian employee at Army hospital sought review of Merit Systems Protection Board final decision sustaining her termination for having failed random drug test

Electronic Data Involved: Email

Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 2008 WL 2487835 (W.D. Pa. June 16, 2008)

Dec 01 2008

Key Insight: Where defendant had produced significant number of requested documents and ESI ?on a rolling basis? but production was still not complete four months past original deadline and defendant claimed its vendor had just provided another 179,180 ESI documents, court struck compromise between respective deadlines urged by parties (August 15 and June 30, 2008) and ordered defendant to complete its production on or before July 23, 2008; court also issued stern warning that it would not hesitate to impose sanctions in the future for any discovery abuses

Nature of Case: Antitrust and unfair competition claims

Electronic Data Involved: ESI

Lipari v. U.S. Bancorp, N.A., 2008 WL 2874373 (D. Kan. July 22, 2008)

Dec 01 2008

Key Insight: Noting that Rule 26(a)(1)(A)(ii) was disjunctive and allowed a party to provide either a copy or description of documents, court found that plaintiff had complied with rule by providing CD containing documents to defendants (regardless of whether document descriptions contained in disclosure statement were insufficient or whether CD was ?searchable?), but directed plaintiff to file supplemental disclosure statement in which he affirmatively states that documents contained on CD were documents he may use to support his claims

Nature of Case: Breach of contract, fraud, trade secret misappropriation and breach of fiduciary duty

Electronic Data Involved: CD containing documents listed in plaintiff?s Rule 26(a)(1) disclosure statement (consisting of more than 11,000 pages)

Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008)

Dec 01 2008

Key Insight: Finding that forensic analysis of defendants? business and home computers was appropriate where plaintiffs presented evidence of specific problems that raised questions regarding accuracy, completeness and authenticity of defendants? email production, court articulated detailed 20-point protocol covering, inter alia, instructions for parties? retention of third party forensic expert, scope of forensic search, privilege review and cost-shifting

Nature of Case: Breach of contract, tortious interference with contract, violations of trade secrets and unfair trade practices acts, and related claims

Electronic Data Involved: Work and home computers containing both business and personal information; email

Tag:Motion to Compel