Motion for Protective Order – Page 21 – Electronic Discovery Law

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

Cartwright v. Viking Indus., Inc., 2008 WL 4283614 (E.D. Cal. Sept. 11, 2008)

Dec 01 2008

Key Insight: Where parties agreed to production of database materials but failed to reach mutual understanding regarding need for privilege log, court held that failure to produce log due to misunderstanding did not waive privilege; court rejected argument that providing log would be unduly burdensome and expensive and ordered production of privilege log within two weeks

Nature of Case: Class action product liability litigation

Electronic Data Involved: Database

Adams Land & Cattle Co. v. Hartford Fire Ins. Co., 2007 WL 4522627 (D. Neb. Dec. 18, 2007)

Dec 01 2007

Key Insight: Where plaintiff?s counsel became aware of mistaken production of privileged email during June deposition but waited until September to contact defense counsel to explain the inadvertent disclosure and request that defendant destroy and agree not to use the email, court applied five-part test and found ?no overriding interest of justice that requires the Court to relieve plaintiff’s counsel of its production errors?

Nature of Case: Insurance coverage

Electronic Data Involved: Privileged email

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

Crutcher v. Fidelity Nat’l Ins. Co., 2007 WL 430655 (E.D. La. Feb. 5, 2007)

Dec 01 2007

Key Insight: Court declared subpoena invalid because requirements of Rule 26(d) apply to subpoenas issued to non-parties, and parties’ written correspondence did not satisfy the requirements of Rule 26(f) to meet, confer, and develop a discovery plan

Nature of Case: Insurance coverage

Electronic Data Involved: Hurricane damage evaluation materials prepared by third party

Solow v. Aspect Res., LLC, 2007 WL 3256944 (Del. Ch. Oct. 30, 2007)

Dec 01 2007

Key Insight: Where nonparty merely asserted, without adequate factual support, that compliance with the subpoena would cause it to incur ?significant expenses,? court denied nonparty?s request for costs for time spent by its employees configuring and executing electronic search and by attorneys reviewing results of search

Nature of Case: Breach of limited partnership agreement

Electronic Data Involved: Unspecified ESI

Tag:Motion for Protective Order