Motion for Protective Order – Page 18 – Electronic Discovery Law

Am. Coal Sales Co. v. Nova Scotia Power, Inc., 2009 WL 467576 (S. D. Ohio Feb. 23, 2009)

Dec 01 2009

Key Insight: Finding that Plaintiff ?took reasonable precautions to avoid inadvertent disclosures by having two attorneys review documents prior to production; that inadvertent production of one document out of over 2,000 documents produced does not weigh in favor of waiver; that the extent of the waiver was not great because the document had not worked its way into the fabric of the litigation; that Plaintiff took prompt measures to rectify the disclosure; and that the overriding interests of justice and fairness did not conclusively counsel in favor of waiver,? court granted plaintiff?s motion for a protective order preventing use of inadvertently disclosed email; court found ER 502 applicable, despite application of alternative five-factor test by magistrate, and determined that court?s application of ER 502 did not prevent review of magistrate?s ruling where ER 502 and five-factor test were sufficiently consistent (see FN 1)

Nature of Case: Breach of contract, unjust enrichment, fraud

Electronic Data Involved: Email

Rohm and Hass, Co. v. Dow Chem., Co., 2009 WL 537195 (Del. Ch. Feb. 26, 2009) (Unpublished)

Dec 01 2009

Key Insight: Chancellor denied motion to compel production of Litigation Support Model program designed to assist defendant in settlement analysis where program was prepared in anticipation of litigation and where plaintiff failed to establish necessary showing of substantial need or the inability to obtain the substantial equivalent elsewhere; recognizing sensitive nature of Enterprise Model program used for corporate decision making and strategy, court denied defendants motion for a protective order but ordered plaintiffs to limit disclosure of that material to essential persons and ordered experts to certify their understanding of the limitations of the information?s use and their obligation of confidentiality prior to viewing the information

Nature of Case: Breach of contract

Electronic Data Involved: Dynamic program models

Boyce & Isley, PLLC v. Cooper, 673 S.E.2d 694 (N.C. App. 2009)

Dec 01 2009

Key Insight: Where protective order allowed for inspection and identification of documents to be copied and where defendant?s attorney was allowed to inspect documents for such identification and also took notes, including typing portions of those documents into her laptop, appellate court found notes were protected as opinion work product because they would reveal which documents, among thousands, were considered significant to defendants and reversed order of trial court compelling their production

Nature of Case: Defamation

Electronic Data Involved: Attorney’s notes on laptop

Melcher v. Apollo Med. Fund Mgmt. L.L.C., 859 N.Y.S.2d 160 (N.Y. App. Div. 2008)

Dec 01 2008

Key Insight: Where there was no proof that plaintiff intentionally destroyed or withheld evidence, plaintiff’s assistant testified that she searched his computers, and there was an adequate explanation for non-production of two items of correspondence, appellate court found trial court had improperly directed the cloning of plaintiff’s computer hard drives and reversed lower court’s order

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Computer hard drives

Gen. Elec. Co. v. SonoSite, Inc., 2008 WL 4062098 (W.D. Wis. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where both sides argued that the other side had not produced all responsive information and it appeared to court that there were a few places in which parties may not have yet looked, court gave parties one last chance to look for responsive material before it would hold them to their ?the documents don’t exist? positions and warned that lack of diligence or forthrightness would result in sanctions; court further denied plaintiff?s request to modify protective order that required source code be made available on a computer at producing party?s office for viewing by opposing party

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Ex Parte Vulcan Materials Co., 2008 WL 1838309 (Ala. Apr. 25, 2008)

Dec 01 2008

Key Insight: Adopting the same approach as that in Ex parte Cooper Tire & Rubber Co., 2007 WL 3121813 (Ala. Oct. 26, 2007), Alabama Supreme Court directed trial court to reconsider Vulcan?s motion for a protective order as to emails sought in light of FRCP 26(b)(2)(B) and Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) and in light of Vulcan?s arguments that the requested emails likely constitute work product and would not likely lead to relevant information

Nature of Case: Company petitioned for writ of mandamus seeking review of trial court?s order on post-trial discovery related to motion for remittitur of punitive damages awarded in underlying action for breach of contract, tortious interference with contractual relations, and civil conspiracy

Electronic Data Involved: Email

Willeford v. Toys ?R? US-Del., Inc., 895 N.E.2d 83 (Ill. App. Ct. 2008)

Dec 01 2008

Key Insight: Appellate court upheld order of contempt and declined to expand protective order to keep confidential names and contact information of persons involved in falling merchandise accidents where defendant?s challenges of discovery rulings resulted in five year delay, were not in good faith, and information sought to be protected was not the sort that should be covered by a protective order

Nature of Case: Personal injury

Electronic Data Involved: Database

Miyano Mach. USA, Inc. v. Miyanohitec Mach., Inc., 2008 WL 2364610 (N.D. Ill. June 6, 2008)

Dec 01 2008

Key Insight: Court applied balancing test and found that plaintiff?s inadvertent production of single privileged email on CD among 22,000 pages of documents did not effect waiver given expedited nature of discovery, scope of documents produced, limited extent of disclosure and lack of any demonstrable prejudice to defendants

Nature of Case: Trademark infringement, cybersquatting, unfair competition, unfair trade practices

Electronic Data Involved: Privileged email

Fausto v. Credigy Servs. Corp., 251 F.R.D. 436 (N.D. Cal. June 19, 2008)

Dec 01 2008

Key Insight: Denying plaintiffs? request to delay production of recorded telephone conversations until after depositions of defendant debt collector’s employees had occurred, court rejected plaintiffs’ unsupported and conclusory argument that witnesses would tailor their testimony to match recordings (thus negating impeachment value); court noted that equity and fairness weighed in favor of production to allow defendant an equal opportunity to prepare

Nature of Case: Consumers alleged violations of federal and state debt collection laws

Electronic Data Involved: Recorded telephone conversations between plaintiffs and debt collectors employed by defendant

John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008)

Dec 01 2008

Key Insight: Applying a five-factor balancing test and in light of significant confidentiality and federalism concerns present in the case, Sixth Circuit concluded that certain aspects of district court’s orders constituted a ?demonstrable abuse of discretion,? and granted, in part, defendants? petition for mandamus and set aside those provisions of the district court’s orders that required forensic imaging of state-owned and privately owned computers, including the provisions that required U.S. Marshal or his designee to assist plaintiffs’ computer expert in execution of orders

Nature of Case: Class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services

Electronic Data Involved: State-owned and privately owned computers

Tag:Motion for Protective Order