Motion for Protective Order – Page 21 – Electronic Discovery Law

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

J.B. Hunt Transp., Inc. v. Adams, 2007 WL 789042 (E.D. Mich. Mar. 14, 2007)

Dec 01 2007

Key Insight: Court overruled plaintiff?s objection to Rule 30(b)(6) notice of deposition seeking testimony of person most knowledgeable about plaintiff?s computers/mainframe, which also requested that the deponent bring the mainframe or the ability to access the mainframe with him/her at the time of the deposition; court found that the information was relevant and discoverable, subject to the noticing party?s concession to take the deposition at the place of the mainframe

Nature of Case: Insurance coverage

Electronic Data Involved: Mainframe computer

Haka v. Lincoln County, 246 F.R.D. 577 (W.D. Wis. 2007)

Dec 01 2007

Key Insight: Balancing relevant factors, court ruled that fairness and efficiency required parties to proceed with search for ESI incrementally and limited initial search to emails stored on hard drives; court instructed plaintiff to narrow his search terms, and any additional searches would occur only by joint agreement or court order; parties to share equally the costs of performing initial keyword search, but defendant to pay full cost of privilege/relevance review

Nature of Case: Employment litigation

Electronic Data Involved: Email and other ESI

Amersham Biosciences Corp. v. PerkinElmer, Inc, 2007 WL 842038 (D.N.J. Mar. 15, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court denied plaintiff’s motion for reconsideration of that portion of its January 31, 2007 order adopting magistrate judge’s finding that plaintiff had waived any privilege that may have applied to the 37 Non-Lotus Notes Documents

Nature of Case: Patent litigation

Electronic Data Involved: Privileged email

Palgut v. City Of Colo. Springs, 2007 WL 1238730 (D. Colo. Apr. 27, 2007)

Dec 01 2007

Key Insight: Finding that defendant’s failure to identify certain backup tapes in its initial disclosures was inadvertent and was not intentional, willful, or wanton, court ruled that defendant need not produce such backup tapes because production would be unduly burdensome and not reasonably calculated to lead to relevant information; court further found that inadvertent disclosures of protected work product by each of the parties did not effect waiver and prohibited defendant from using or referring to any ?embedded data? contained in plaintiff?s discovery requests and responses

Nature of Case: Employment discrimination

Electronic Data Involved: Backup tapes and embedded data

Tag:Motion for Protective Order