Third Party Discovery – Page 10 – Electronic Discovery Law

Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)

Dec 01 2012

Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs

Nature of Case: civil rights and employment law

Electronic Data Involved: ESI

Soto v. Castlerock Farming & Transport, Inc., 282 F.R.D. 492 (E.D. Cal. Apr. 30, 2012)

Dec 01 2012

Key Insight: Where defendant alleged that plaintiffs? requests would result in an undue burden in light of the number of defendant?s employees and the number of farm labor contractors with whom it did business (because of the high volume of records) the court concluded that sampling was ?an appropriate method? to relieve defendant?s burden and, recognizing that even sampling would be burdensome, ordered ?a reduced sample? which would nonetheless ?yield meaningful information? and further ordered defendant to perform a random sample of 50% of payroll and timekeeping records for designated months and years ?unless the parties agree to a different sampling method;? Court denied (in part) third-party?s motion to quash where the information sought was relevant and where the third party presented evidence of burden as to production in hard copy but presented no such evidence as to electronic records which the third party indicated it maintained

Nature of Case: Wage and hours class action

Electronic Data Involved: Payroll and timekeeping records, ESI

Tucker v. Amer. Int?l Group, Inc., No. 3:09-CV-1499 (CSH), 2012 WL 902930 (D. Conn. Mar. 15, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion to compel inspection of third party?s electronic records where the subpoenas seeking access was overly broad, where the existence of additional responsive information was speculative, where the information sought was cumulative of information obtained elsewhere, and where conducting the requested search would result in a significant burden to a non-party

Nature of Case: Action to recover damages from former employer’s insurers

Electronic Data Involved: ESI

In re Estate of Tilimbo, No. 329/M-2007, 2012 WL 3604817 (N.Y. Sur. Ct. Aug. 22, 2012)

Dec 01 2012

Key Insight: Court granted access to third party attorney?s computers by a third party vendor for purpose of imaging and searching for documents related to the at-issue deed/transfer but imposed strict conditions, including time limits, and found that if the time limits could not be accommodated, then the burden of inspection was too great

Nature of Case: Action related to contested probate

Electronic Data Involved: computers/hard drives

Geller v. Von Hagens, No. C11-80269, 2012 WL 1413461 (N.D. Cal. Apr. 23, 2012)

Dec 01 2012

Key Insight: Court granted third party?s motion to quash a subpoena where the court determined the subpoena was unduly burdensome, particularly in light of the third party?s estimate that the cost of identifying the requested information could exceed $40,000?a significant sum for a non-profit museum; ?as important? as the analysis of undue burden was the fact that plaintiff sought the requested information only from third party sources rather than from defendants which the court found ?only exacerbate[ed] the burden?

Nature of Case: Defamation and tortious interference

Electronic Data Involved: ESI

Scott Process Sys., Inc. v. Mitchell, No. 2012CV00021, 2012 WL 6617363 (Ohio Ct. App. Dec. 17, 2012)

Dec 01 2012

Key Insight: Trial court abused discretion in granting motion to compel forensic imaging of third party?s devices where the record did not present a history of discovery violations or non-compliance sufficient to justify such intrusion and where the court?s order permitted ?unfettered forensic imaging? and contained none of the protections required to conduct forensic analysis (e.g., a neutral third-party examiner, production to counsel for privilege review prior to production to opposing counsel, etc.)

Nature of Case: Violation of non-compete

Electronic Data Involved: Forensic imaging

Glazer v. Fireman?s Fund Ins. Co., No. 11 Civ. 4374(PGG)(FM), 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012)

Dec 01 2012

Key Insight: Where third-party provider of online psychic services represented that plaintiff would be able to access most of the information requested by defendant if she re-opened her account, the court ordered that plaintiff do so, and promptly produce all responsive information; as to information not available to plaintiff, court indicated that defendant may be provided opportunity to require plaintiff to provide authorization to third party to release such information

Nature of Case: Employment Discrimination

Electronic Data Involved: Records related to sessions with online psychic

Boucher v. First Am. Title Ins. Co., No. C10-199RAJ, 2011 WL 5299497 (W.D. Wash. Nov. 4, 2011)

Dec 01 2011

Key Insight: Following discussion of the breadth of original requests and subsequent narrowing of scope, court addressed duty of defendant to produce evidence from third-party who provided defendant with mortgage-related documents and from independent agents and ordered production from those parties where evidence indicated that at least some agents had contractually agreed to produce documents thus evidencing defendant?s control and where provider of mortgage-documents did not object to disclosure

Nature of Case: Class action

Electronic Data Involved: ESI from third parties

Hard Drive Prods., Inc. v. Does 1-69, No. C-11-03004 HRL, 2011 WL 2784578 (N.D. Cal. July 14, 2011)

Dec 01 2011

Key Insight: Court granted motion for expedited discovery allowing plaintiff to serve Rule 45 subpoenas on ISPs to obtain information sufficient to identify Doe defendants

Nature of Case: Copyright infringement

Electronic Data Involved: Names of ISP subscribers

Berryman-Dages v. City of Gainesvill FL, No. 1:10-cv-00177-MP-GRJ, 2011 WL 2938369 (N.D. Fla. July 20, 2011)

Dec 01 2011

Key Insight: Court granted in part motion to quash subpoena seeking forensic investigation of non-party?s personal computer and ordered the subpoena be modified to allow a forensic investigator to search for the singular piece of evidence at issue and related metadata and to allow the non-party to be present and to bring her own expert to observe during the forensic examination, among other things

Nature of Case: Employment discrimination

Electronic Data Involved: Hard Drive

Tag:Third Party Discovery