Motion for Protective Order – Page 15 – Electronic Discovery Law

In re Urethane Antitrust Litig., 2010 WL 4226214 (D. Kan. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where plaintiffs sought a protective order to preclude discovery of a certain category of information, court denied their motion for a myriad of reasons, including rejecting arguments of undue burden and expense where the arguments were ?largely conclusory and unsupported? and where plaintiffs evidence actually established that the discovery could be reasonably undertaken as the result of work done while responding to other requests and reasoned that while responding would ?take time?, it would not be an ?inordinate? amount

Nature of Case: Price fixing, market-allocation conspiracies

Electronic Data Involved: ESI related to criminal investigation of some plaintiffs

Olem Shoe Corp. v. Wash. Shoe Co., 2010 WL 3981694 (S.D. Fla. Oct. 8, 2010)

Dec 01 2010

Key Insight: Court found no waiver of privilege resulting from commercial copy service?s inadvertent disclosure of privileged materials to plaintiff?s counsel where the disclosure was clearly inadvertent, where reasonable steps were taken to protect the privilege including clear instructions to the copy service and clearly marking the documents as privileged, and where defense counsel acted promptly to rectify the error after learning of the disclosure; court rejected arguments that defense counsel waived privilege by a delay in seeking the documents? return where such delay was directly related to plaintiff?s decision to notify only defense counsel?s paralegal of the disclosure, who inexcusably failed to pass that information on to counsel, and where defense counsel requested the documents? return on the same day he actually learned of the disclosure

Electronic Data Involved: Privileged ESI

Kmart Corp. v. Footstar, Inc., 2010 WL 4512337 (N.D. Ill. Nov. 2, 2010)

Dec 01 2010

Key Insight: Court found the producing party did not take reasonable steps to prevent disclosure and that privilege was therefore waived as to inadvertently produced privileged documents where the number of documents requiring review prior to production was low in light of the public nature of most documents produced at the same time as the inadvertently produced documents, where the alleged time constraints for the relevant review were ?self-imposed? by the producing party, and where despite representations that the materials were reviewed by an attorney who was looking for privileged materials, insufficient facts were offered in support of that contention

Nature of Case: Plaintiff sought indemnification for underlying personal injury suit

Electronic Data Involved: ESI

Johnson v. Neiman, 2010 WL 4065368 (E.D. Mo. Oct. 18, 2010)

Dec 01 2010

Key Insight: Court granted defendants? motion for a protective order precluding their obligation to produce evidence contained only on backup tapes where defendants made a sufficient showing of the burden to do so in terms of both money and time and where plaintiff was unable to establish good cause to compel the production; court found it ?most significant? that plaintiff had ?no idea what, if any? discoverable information could be obtained by the restoration and search of the tapes

Electronic Data Involved: Emails stored on backup tapes

Daugherty v. Murphy, 2010 WL 4877720 (S.D. Ind. Nov. 23, 2010)

Dec 01 2010

Key Insight: Where defendants established that the requested data extracts proposed by plaintiffs would take 5 months and ?about $100,000? the court granted defendants? motion for a protective order and ordered defendants to execute the data extractions which they had proposed and which they represented would be far less burdensome; court denied plaintiff?s motion to compel defendants? production of ?file layouts? for the purpose of revising their request for data extracts but acknowledged that defendants? failure to previously produce ?file layouts? was a serious issue and its wiliness to address sanctions upon a motion from plaintiffs

Nature of Case: Class action

Electronic Data Involved: Data extracts

Response Personnel, Inc. v. Aschenbrenner, 909 N.Y.S.2d 433 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where a lower court denied plaintiff?s motion for a protective order and ordered the production of tax returns and other documents in electronic format at plaintiff?s expense, the appellate court affirmed the denial of the protective order and the order compelling electronic production but found that requiring plaintiff to bear the costs imposed an undue burden where ?generally, the costs of production is borne by the party requesting the production, and the cost of creating electronic documents here would not be inconsequential?

Electronic Data Involved: Tax returns and other documents in electronic form

Robotic Parking Sys., Inc. v. City of Hoboken, 2010 WL 324524 (D.N.J. Jan. 19, 2010) (Unpublished)

Dec 01 2010

Key Insight: Court granted intervenor?s motion for a protective order where plaintiff (intervenor?s direct competitor) sought access to defendant?s garage operating computers possibly containing intervenor?s trade secrets but denied request to prevent access entirely where such access was necessary for plaintiff?s case, where there was no showing of irrelevance or burden, and where intervenor?s concerns were ?too speculative to warrant non-disclosure?; court ordered parties to split cost of software necessary for defendant to view forensic images produced by plaintiff where plaintiff sought to use the images at trial, where defendant had no way to view the court ordered production otherwise, and where the parties failed to properly discuss and agree upon discovery issues, including the cost of production, pursuant to local rule

Nature of Case: Breach of contract

Electronic Data Involved: ESI, source code

Lorentz v. Sunshine Health Prods., Inc., 2010 WL 1856265 (S.D. Fla. May 10, 2010)

Dec 01 2010

Key Insight: Court granted motion for protective order where plaintiff?s request for inspection of defendants? hard drives was found ?per se overbroad and unduly burdensome when balanced against the need cited? and where plaintiff failed to explain whether a less intrusive option had been attempted, ?as per Rule 34?; despite granting the motion, court noted willingness to entertain a motion to inspect a particular hard drive if provided with a protocol for such inspection indicating a method to protect the non-responsive data

Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721 (D. Colo. Feb. 8, 2010)

Dec 01 2010

Key Insight: Where defendants bore the burden of persuasion when asserting that ESI was inaccessible because of undue burden or cost and where defendants? supported their claim of inaccessibility with only one declaration which lacked specific information regarding defendants? storage practices, the number of back-up or archival systems that would need to be searched, or defendants? capability to retrieve information from those back-up or archival systems, the court denied defendants? Motion for a Protective Order

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition, unjust enrichment and fraud

Electronic Data Involved: ESI

CE Design Ltd. v. Cy?s Crabhouse North, Inc., 2010 WL 3327876 (N.D. Ill Aug. 23, 2010)

Dec 01 2010

Key Insight: Court vacated prior order designating contents of relevant hard drive confidential where good cause was not established by the proffered reasons for the designation; addressing defendant?s motion to disqualify plaintiff?s counsel and bar its expert for failure to timely supplement discovery by producing a relevant hard drive, the court ruled that defendant failed to offer new information that would justify such a sanction (because this issue was previously considered) where the newly-discovered documents (on the late-produced hard drive) did not change the court?s analysis as to numerosity and certification of the class and where the expert was given the opportunity to supplement his report

Nature of Case: Violation of Telephone Consumer Protection Act

Tag:Motion for Protective Order