Motion for Protective Order – Electronic Discovery Law

Substance Use Disorder Patient Records: Important Limitations on Disclosure in Litigation or Otherwise

Sep 17 2022

Under 42 U.S.C. 290dd-2, federal law requires “records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance use disorder education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States” to be maintained confidentially and disclosed only as provided under this law. Accordingly, such substance abuse treatment programs and related third-party payers and administration entities should be aware of the restrictions on disclosure and use of patient records relating to certain substance use disorders under this statute and 42 C.F.R. Part 2. Violations of this regulation may be subject to criminal penalty. Significantly, this regulation does not compel disclosure of such records even if they fall into permissible circumstances, but rather indicates circumstances in which these records may be disclosed. Patient consent and/or a court order authorizing disclosure of patient information otherwise prohibited by this regulation is necessary in order to provide this information in response to a subpoena or other legal requirement.

Substance Use Disorder Patient Records: Important Limitations on Disclosure in Litigation or Otherwise

Sep 16 2022

Allen v. PPE Casino Resorts Maryland, LLC (D. Md. 2021)

Jun 14 2021

Key Insight: Plaintiffs sought a protective order to prevent defendant from obtaining ESI from five different social media platforms they were active on. The court found that while a plaintiff’s social media postings could be relevant to a claim for “garden variety” emotional distress damages, some caution was necessary, such that a “deeper dive” into social media postings may be justified only in cases involving “severe and specific emotional distress” allegations. Since plaintiff alleged “garden variety” emotional distress stemming from defendant’s allegedly wrongful conduct, the discovery must be narrowed as follows: “specific references to serious, non-transient emotional distress in connection with the incidents described in their Complaint,” i.e., diagnosable conditions, visits to professionals for treatment of distress, treatment regimens and conversations regarding same; time frame limited from date contained in complaint of onset of difficulties to the date of filing of complaint; production limited to information found in a typical download of data from plaintiffs’ own accounts and plaintiffs “need not engage in extraordinary efforts in obtaining responsive information.”

Nature of Case: Employment discrimination

Electronic Data Involved: Social media posts

Case Summary

Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)

Jun 09 2021

Key Insight: Communications between a party and its hired legal consultant are work product if they are generated in anticipation of litigation. Work product containing mental impressions, conclusions, opinions, or legal theories concerning the litigation is rarely discoverable and enjoy “near absolute immunity.” Documents subpoenaed from the legal consultant still retain work product privilege.

Instead of providing privilege logs, the court allowed the legal consultants to categorically withhold or redact privileged communications so long as they provided a certification that none of withheld or redacted documents were distributed to or reviewed by any other third parties. In lieu of such certification, the legal consultants would have to produce a privilege log.

Nature of Case: Property, Eminent Domain

Electronic Data Involved: Email, Electronic Communications

Case Summary

Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc. (W.D. Ky. 2021)

Apr 20 2021

Key Insight: The litigation was over a licensing agreement regarding the use of trademarks owned by Plaintiff on cigars. Plaintiff filed a Motion(s) for a Protective Order and to Compel. The Protective Order sought would to preclude deposition testimony regarding functionality. The Motion to Compel sought to compel Defendant to utilize a new search protocol to find requested information (and documents) and produce financial records.

Plaintiff’s Motion for a Protective Order was granted; its Motion to Compel was partially granted, requiring Defendant to produce financial records, and but denied insofar as it sought to compel Defendant to utilize new search terms to search for documents. Unreasonable delay by Plaintiff in raising the issue(s) of the new search terms and/or purportedly missing documents was a significant factor in the Court’s partial denial of Plaintiff’s Motion.

Nature of Case: Trademark Infringement

Electronic Data Involved: Financial Records, Electronic Documents

Case Summary

Oppenheimer v. Episcopal Communicators, Inc. (W.D. N.C. 2020)

Aug 14 2020

Key Insight: The litigation was over Defendant’s purported copyright infringement due to Defendant’s publishing of a copyrighted photograph on its website. Defendant served its first discovery requests on Plaintiff; Plaintiff provided an untimely response with a number of objections including attorney-client privilege (without a privilege log), and “boilerplate objections”. Defendant filed a Motion to Compel, which was granted. Plaintiff provided a supplemental response, however, Defendant filed an additional Motion to Compel, and also sought attorney’s fees for the Motion. Besides privilege, at issue was Plaintiff’s objection to the proportionality of Defendant’s discovery requests.

The Court did not find Plaintiff’s “boilerplate objections”, including proportionality, persuasive. And found that they lack specificity and/or merit. Plaintiff’s objection(s) of confidentiality on the grounds of settlement, proprietary business information was rejected. Similarly, the Court rejected the Plaintiff’s privilege objection(s) due to Plaintiff’s failure to provide a privilege log.

In summary, the Court found that Plaintiff’s assertion of boilerplate objections (and failure to provide a privilege log) consisted of grounds overruling all of his objections. The Court granted Defendant’s Motion to Compel, and similarly, ordered Defendant to provide it an estimate of the attorney’s fees spent on the Motion (for the purpose of awarding Defendant attorney’s fees).

Nature of Case: Intellectual Property, Copyright Infringement

Electronic Data Involved: Digital Photograph

Case Summary

Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Jun 18 2020

Key Insight: Cost shifting of the TAR costs to Plaintiff was warranted based on an analysis of the proportionality factors. Plaintiff was warned to narrow his discovery multiple times, continued to demand overbroad criteria for TAR, was aware of the potential costs of TAR, and was aware the discovery he sought led to largely non-responsive documents. Moreover, Defendant produced responsive documents by conducting its own search and production of documents outside of the TAR process.

Nature of Case: Breach of Contract, Non-Compete

Electronic Data Involved: Electronic Documents Generally

Case Summary

Javo Beverage Co. Inc. v. California Extraction Ventures, Inc. (S.D. Cal. 2020).

Apr 29 2020

Key Insight: The court granted defendant’s motion to compel production of filepath information, but allowed defendant to object to producing discrete filepath information if defendant can articulate a good faith basis for the objection, including irrelevance as to time or scope, or if the filepath data is misleading. If any filepath data is not readily accessible, the parties must confer and attempt to reach a cost-effective resolution prior to seeking the court’s involvement. The court also confirmed the parties’ mutual understanding that they are obligated to “preserve ephemeral, deleted, and other related kinds of data where counsel reasonably suspects such data is relevant” to the litigation.

Nature of Case: Trade secret misappropriation

Electronic Data Involved: ESI generally

Case Summary

Corker v. Costco Wholesale (W.D. Wash. 2020)

Apr 27 2020

Key Insight:

Electronic documents should be produced in the form it is ordinarily maintained or in a reasonably useable form. PDF images of a spreadsheet are not a reasonably usable form due to the functional limitations. While they are readable and searchable, they cannot be sorted or filtered as an original spreadsheet can be. Spreadsheets should be produced in their native form.

A party cannot unilaterally redact a document based on relevance absent a claim of privilege. In cases where the document contains highly confidential commercial information, a protective order may be issued requiring the information not be revealed or only be revealed in a specified way, such as designating it for “counsel eyes only.”

Nature of Case: Class Action, Unfair Competition

Electronic Data Involved: Spreadsheets

Case Summary

IN RE: Bard IVC Filters Products Liability Litigation (D. Arizona, 2020)

Mar 05 2020

Key Insight: “No-eyes-on” document production;

Nature of Case: Products Liability MDL

Electronic Data Involved: Hard copy and ESI productions;

Keywords: MDL; Discovery orders; Production

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Tag:Motion for Protective Order