Motion for Protective Order – Page 20 – Electronic Discovery Law

Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355 (2008)

Dec 01 2008

Key Insight: Court denied (in part) motion for writ of mandamus to vacate trial court?s order compelling production of ?all documents regarding the relationship between Nationwide and its counsel? where Nationwide failed to show that the information was ?patently irrelevant,? as required, and where the court opined that the information was accessible through its counsel and was thus unpersuaded that production would be arduous; court granted motion (in part) and directed trial court to vacate order compelling production of all electronic communications with counsel where court found that communications occurring after denial of coverage were within period in which litigation was anticipated and were therefore privileged

Nature of Case: Breach of insurance contract

Electronic Data Involved: Email, ESI regarding relationship with counsel

J.T. Shannon Lumber Co., Inc. v. Gilco Lumber, Inc., 2008 WL 3833216 (N.D. Miss. Aug. 14, 2008)

Dec 01 2008

Key Insight: Granting motion to quash, court found that subpoenas duces tecum served by plaintiff on Microsoft, Google and Yahoo! requesting entire contents of individual defendants’ mailboxes and other information were facially invalid under Stored Communications Act of 1986 and were overly burdensome and oppressive; court found that breadth was so expansive that it resembled a ?fishing expedition,? and that plaintiff had not shown that all information requested was relevant or likely to lead to admissible evidence

Nature of Case: Intentional interference with business relationships, breach of contract, breach of fiduciary duty

Electronic Data Involved: Entire contents of individual defendants’ mailboxes stored on third-party ISPs, details of individuals’ accounts and user connection logs

Advante Int’l Corp. v. Mintel Learning Tech., 2008 WL 928332 (N.D. Cal. Apr. 4, 2008)

Dec 01 2008

Key Insight: Where court had earlier ruled that defendant could recover attorney fees and costs relating to motion to compel and forensic inspection of plaintiff?s computer servers, court denied defendant?s subsequent request for $944,902 in attorneys? fees and instead awarded $105,000 as reasonable amount of attorneys? fees incurred; court further ordered plaintiff to pay neutral computer expert only for fees directly related to forensic inspection and not for those related to defendant’s advocacy in the action

Nature of Case: Misappropriation of intellectual property

Electronic Data Involved: Computer servers

Floyd v. City of New York, 2008 WL 4179210 (S.D.N.Y. Sept. 10, 2008)

Dec 01 2008

Key Insight: Where all information in particular NYPD database was relevant to plaintiffs? claims and not subject to law enforcement privilege, court granted plaintiffs? motion to compel production of data with exception of names of suspects and police officers and subject in part to protective order to be negotiated by parties or imposed by court

Nature of Case: Class action alleging defendants sanction a policy and practice of stop and frisks by the New York Police Department on the basis of race and ethnicity

Electronic Data Involved: NYPD database

In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008)

Dec 01 2008

Key Insight: District court upheld magistrate judge’s order quashing State Farm’s subpoena to AOL because: (1) plain language of Electronic Communications Privacy Act prohibited AOL from producing requested email because a civil discovery subpoena was not a disclosure exception under Act; (2) State Farm’s subpoena imposed undue burden because subpoena was overbroad; and (3) court where action was pending was better posed to decide privilege issues

Nature of Case: Former insurance adjusters alleged that State Farm committed fraud in connection with handling of Hurricane Katrina damage claims

Electronic Data Involved: Email stored on AOL’s servers

Southridge Capital Mgmt., LLC v. Pitkin, 2008 WL 4150225 (Conn. Super. Ct. Aug. 18, 2008) (Unpublished)

Dec 01 2008

Key Insight: Where Commissioner was legally authorized to conduct an investigation, subpoena sought documents and ESI that were reasonably relevant to investigation, and Commissioner had valid concerns regarding completeness of plaintiff?s prior productions, court found that investigative subpoena was issued for a proper purpose and denied plaintiff?s motion to quash; court further rejected plaintiff?s claim that subpoena was unduly burdensome, noting that plaintiff had failed to present any documentary evidence of its cost estimates and that plaintiff must bear production costs like any other cost of doing business

Nature of Case: Securities investigation conducted by Connecticut Commissioner of Banking

Electronic Data Involved: Email and other ESI

St. Cyr v. Flying J, Inc., 2008 WL 2097611 (M.D. Fla. May 16, 2008)

Dec 01 2008

Key Insight: Court concluded that FRCP 26(5)(B) applied not only to ESI but to paper documents as well, and set out lengthy quote from advisory committee’s note; court denied plaintiff’s motion in limine to exclude evidence of plaintiff’s communications with expert, finding that plaintiff had waived work product protection by voluntarily producing the documents at expert’s deposition

Nature of Case: Negligence and strict liability

Electronic Data Involved: Letter and email produced in hard copy form

In re Carco Elecs., 536 F.3d 211 (3rd Cir. 2008)

Dec 01 2008

Key Insight: Where party was dissatisfied with scope and degree of protection afforded by trial court?s protective order relating to production of source code, and appealed, Third Circuit found that the discovery order was neither final nor appealable and dismissed appeal

Nature of Case: Bankruptcy

Electronic Data Involved: Source code

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

Tag:Motion for Protective Order