Motion for Protective Order – Page 22 – Electronic Discovery Law

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Puckett v. Tandem Staffing Solutions, Inc., 2007 WL 7122747 (N.D. Ill. Jun. 27, 2007)

Dec 01 2007

Key Insight: Court denied motion for sanctions but, despite prior production of the information in hard copy, ordered defendant to restore and re-produce information from backup tapes where the information was ?reasonably calculated to lead to the discovery of admissible evidence? and where defendant asserted that it?s ?documentation? was maintained in electronic form in the usual course of business, and ordered the parties to split the costs; court declined to compel defendant?s search of computers which ?may or may not have been utilized by plaintiff and his comparators? where requiring a search of an unknown number of computers in various offices with the possibility that no relevant individuals utilized them was unduly burdensome

Nature of Case: Employment discrimination

Electronic Data Involved: Backup tapes, computers

RMS Servs.-USA, Inc. v. Houston, 2007 WL 1058923 (E.D. Mich. Apr. 5, 2007)

Dec 01 2007

Key Insight: Court denied motion for protective order since record was incomplete, but ordered parties to meet and confer to develop a proposed discovery plan; court set forth specific instructions regarding preservation of documents to be observed by parties until they reached agreement on preservation plan

Electronic Data Involved: Email, hard drives, metadata, and other forms of electronic documents

Member Servs., Inc. v. Sec. Mut. Life Ins., 2007 WL 2907520 (N.D.N.Y. Oct. 30, 2007)

Dec 01 2007

Key Insight: Court ordered defendant to produce highly relevant source code in electronic format subject to protective order in place and agreement by expert that he not share the information with others, including the plaintiffs, notwithstanding prior production in hard copy format

Nature of Case: Copyright infringement, breach of fiduciary duty, breach of contract, unfair trade practices

Electronic Data Involved: Source code

Nat’l Council on Compensation Ins., Inc. v. Am. Int’l Group, Inc., 2007 WL 4365372 (N.D. Ill. Dec. 11, 2007)

Dec 01 2007

Key Insight: Where parties could not agree on terms of protective order to govern exchange of confidential information in discovery and each side had included an “inadvertent production” provision in their respective proposals, court adopted plaintiff’s form of inadvertent production provision, which was consistent with FRCP 26(b)(5)(B); court also adopted two-tiered provision for designating information as “confidential” and “highly confidential–outside counsel’s eyes only”

Nature of Case: RICO and fraud claims

Electronic Data Involved: ESI

Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090 (Ala. 2007)

Dec 01 2007

Key Insight: In light of evidence presented by Cooper that burden of producing responsive emails would entail thousands of hours and hundreds of thousands of dollars, Alabama Supreme Court granted in part petition for writ of mandamus and instructed trial court to ?specifically address Cooper’s arguments that compliance with the plaintiffs’ request for the discovery of e-mails is unduly burdensome in light of the recent federal guidelines on that subject,? and to enter an appropriate protective order to the extent it found that the production of certain ESI was unduly burdensome; court further opined that trial court should consider the 2006 FRCP amendments and the factors applied in Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Nature of Case: Defendant tire manufacturer in product liability case petitioned Alabama Supreme Court for writ of mandamus ordering trial court to grant its motion for a protective order limiting discovery

Electronic Data Involved: Emails and other ESI

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