Motion for Protective Order – Page 20 – Electronic Discovery Law

Koch Foods of Ala. LLC v. Gen. Elec. Capital Corp., 531 F.Supp.2d 1318 (M.D. Ala. 2008)

Dec 01 2008

Key Insight: Concluding that, if the Alabama Supreme Court were to confront the issue of inadvertent waiver, it would likely adopt more comprehensive and sensitive totality-of-the-circumstances analysis, district court upheld magistrate judge?s ruling that plaintiff?s inadvertent production of privileged email among 3,758 pages of documents did not effect waiver

Nature of Case: Dispute over ownership of certain poultry processing equipment

Electronic Data Involved: Privileged email

Huang v. Gateway Hotel Holdings, 2008 WL 2486030 (E.D. Mo. June 18, 2008)

Dec 01 2008

Key Insight: Court ruled that plaintiffs were not required to produce for forensic inspection their ?desktop computers, cell phones, e-mail machines, laptop computers, mobile phones, ESI storage media, handheld computers and personal digital assistants,? but ordered plaintiffs determine which plaintiffs owned such devices and to produce a list of names and equipment to defendant within 20 days, and defendant would be allowed to re-file the discovery request with a showing of need; court further ruled that defendant need not produce pay and time records in an accessible electronic format but gave plaintiffs leave to re-file motion upon a showing that defendant had not supplied all available pay and time records

Nature of Case: FLSA claims, retaliation

Electronic Data Involved: Computers, cell phones and ESI storage devices used by plaintiffs

CBT Flint Partners, LLC v. Return Path, Inc., 2008 WL 4441920 (N.D. Ga. August 7, 2008)

Dec 01 2008

Key Insight: Where plaintiff moved to compel production of essentially every document in defendant?s possession, failed to engage in meaningful meet and confer discussions, repeatedly ?filled the record with invective? and made misrepresentations to court, and where defendant had produced in native format over 1.4 million pages of documents as result of electronic search using plaintiff?s 102 search terms in addition to numerous versions of source code and paper documents, and was in substantial compliance with discovery at time of hearing, and where court had previously imposed cost shifting by ordering production of certain documents contingent upon plaintiff bearing $300,000 of defendant?s privilege review expense, court further ruled that defendant was entitled, under Rule 37(a)(5), to an additional $86,787 representing 75 percent of its attorneys’ fees incurred in connection with the discovery dispute

Nature of Case: Patent infringement

Electronic Data Involved: Email, ESI

Faloney v. Wachovia Bank, N.A., 2008 WL 2631360 (E.D. Pa. June 25, 2008)

Dec 01 2008

Key Insight: Email message drafted by a Wachovia corporate litigation attorney summarizing conference call and formulating legal advice concerning bank-wide policy on Wachovia’s relationships with certain customers was protected by attorney-client privilege and work product doctrine, notwithstanding inadvertent production

Nature of Case: Class action alleging that Wachovia conspired with telemarketing companies and payment processor to violate United States law

Electronic Data Involved: Privileged email

Cantrell v. Cameron, 195 P.2d 659 (Colo. 2008)

Dec 01 2008

Key Insight: Finding the court abused its discretion when it ordered production of a laptop for inspection but declined to incorporate restrictions or narrow scope of inspection and denied defendant?s motion for a protective order despite confidentiality concerns including attorney-client privilege and proprietary business information, appellate court vacated order and directed lower court to issue protective order limiting scope of inspection; court noted that while personal computers do implicate confidentiality issues requiring ?serious consideration of a person?s privacy interest,? ?a personal computer?s contents are not confidential by nature?

Nature of Case: Traffic accident resulting in personal injury

Electronic Data Involved: ESI, laptop

Leibholz v. Hariri, 2008 WL 2697336 (D.N.J. June 30, 2008)

Dec 01 2008

Key Insight: Court denied third party?s motion to quash and ordered it to produce 30(b)(6) witness to testify regarding maintenance of electronic copies of files, including electronic copies of two contested letters, backup procedures utilized, and document and electronic record retention policies

Nature of Case: Securities fraud, common law fraud, promissory and equitable estoppel, breach of contract

Electronic Data Involved: Electronic copies of two disputed letters

Huthnance v. D.C., 255 F.R.D. 285 (D.D.C. 2008)

Dec 01 2008

Key Insight: Where defendants? radio log indicated a relevant communication occurred but where defendants were unable to produce the audio tape, court ordered defendant to produce its document retention policies to show ?whether the [communications] were maintained according to standard procedure?

Nature of Case: Claims arising from alleged illegal arrest and detention

Electronic Data Involved: Audio tapes of phonecalls, access to

U.S. v. Two Bank Accounts, 2008 WL 2696927 (D.S.D. July 2, 2008)

Dec 01 2008

Key Insight: Where party initially told government he did not have certain computers used in various businesses discussed in complaint, then revealed that he possessed the computers but objected to providing them to government, and then admitted having removed hard drives and hiring third party to create a mirror images, court ruled that government was not bound to accept mirror image made by third party and ordered party to produce computers to government for inspection; court further ordered government to promptly create mirror image of hard drives and return computers promptly to party

Nature of Case: Forfeiture action

Electronic Data Involved: Hard drives of certain computers used in the transactions alleged in the complaint

Koch Foods of Ala., LLC v. Gen. Elec. Capital Corp., 2008 WL 5264672 (11th Cir. Dec. 18, 2008)

Dec 01 2008

Key Insight: Court found no waiver of attorney-client privilege from inadvertent production where the privileged email was found tucked into a 37-page lease agreement contained in a 3,758 page production, where the email was included in the privilege log, and where plaintiff immediately asserted privilege upon learning of its disclosure; court acknowledged Alabama?s lack of controlling authority, but applied a totality-of-the-circumstances test reasoning that ?it would likely be adopted by the Alabama Supreme Court if confronted with the issue.?

Nature of Case: Conversion

Electronic Data Involved: Email

RGIS, LLC v. A.S.T., Inc., 2008 WL 186349 (E.D. Mich. Jan. 22, 2008)

Dec 01 2008

Key Insight: Court granted defendants? request for appointment of Fed. R. Civ. P. 53 special master to analyze and compare source codes of subject software prior to any discovery of proprietary source codes

Nature of Case: Copyright infringement

Electronic Data Involved: Source code for software in hand-held computers used for inventory control

Tag:Motion for Protective Order