Motion for Protective Order – Page 8 – Electronic Discovery Law

Shipley v. Forest Labs., No. 1:06-cv-00048-TC-DBP, 2014 WL 4270939 (D. Utah Aug. 29, 2014)

Dec 01 2014

Key Insight: Stating it could not speculate about defendant’s claimed burden given lack of any details, court granted in part plaintiff’s motion to compel and ordered defendant to run a preliminary search of custodial files belonging to particular sales representatives using search terms and time limits set forth in Case Profile Form, and to submit a certification to the court describing the volume of responsive documents and the approximate cost defendant would incur in running a full search through its vendor and through privilege review; once the court received the certification, it would determine whether the burden of producing such custodial documents outweighed the benefit of production

Nature of Case: Products liability wrongful death action

Electronic Data Involved: ESI

In re Transpacific Passenger Air Transp. Antitrust Litig., No. C-07-05634 CRB (DMR), 2014 WL 709555 (N.D. Cal. Feb. 24, 2014

Dec 01 2014

Key Insight: Court granted plaintiffs’ motion to quash defendant airline’s subpoena to third party Airline Tariff Publication Company (“ATPCO”) which sought production of documents and ESI previously obtained by plaintiffs from ATPCO, search terms and parameters used by plaintiffs, and communications between ATPCO and plaintiffs’ expert, where defendant had chose not to collaborate with plaintiffs and other defendants to identify relevant information, formulate search strings and download the results pursuant to a cost-sharing agreement, and parties’ stipulation regarding experts protected the requested materials from discovery

Nature of Case: Antitrust litigation

Electronic Data Involved: Historical airfare pricing data

Vasquez v. Cal. Sch. of Culinary Arts, 230 Cal.App.4th 35(2014)

Dec 01 2014

Key Insight: Trial court did not err in awarding plaintiffs their attorneys’ fees and costs incurred after successfully opposing Sallie Mae’s motion to quash subpoena, as Sallie Mae lacked substantial justification for its motion given that plaintiffs did not seek to have Sallie Mae extract and compile information from paper files but only asked that Sallie Mae extract ESI from an existing database, plaintiffs never expressed an unwillingness to pay for the reasonable cost of doing so but repeatedly asked for a cost estimate, and Sallie Mae ignored plaintiffs’ requests and did not provide a cost estimate until after its motion to quash had been denied and plaintiffs’ request for attorneys’ fees was being heard

Nature of Case: 1,034 former students asserted claims of fraud, breach of contract and violations of consumer laws

Electronic Data Involved: Loan records maintained by Sallie Mae

In re Subpoena of Drasin, Advanced Career Techs., Inc. v. Does 1-10, No. ELH-13-1140, 2014 WL 585814 (D. Md. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court granted motion to quash subpoena to administrator of blog on which anonymous users posted disparaging comments about plaintiff because the burdens of the subpoena on the blog administrator — surrendering personal hard drives to plaintiff for up to 30 days, and granting plaintiff access to his personal information on the hard drives — outweighed the very little benefit, if any, that would result from the subpoena, and because the requested information was available from another source, i.e., the blog host, Google

Nature of Case: Defamation, trade libel, commercial disparagement

Electronic Data Involved: Hard drives and servers

Pick v. City of Remsen, No. C 13-4041-MWB, 2014 WL 458732 (N.D. Iowa Sep. 15, 2014)

Dec 01 2014

Key Insight: District court affirmed magistrate judge’s order granting defendants’ motion for order requiring destruction of inadvertently-produced privileged email, rejecting plaintiff’s various objections and finding no clear error in magistrate judge’s application of five-step “middle of the road” analysis set forth in Hydroflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993) which considerations include: (1) reasonableness of precautions, (2) number of inadvertent disclosures, (3) extent of the disclosures, (4) timeliness of rectifying measures, and (5) overriding interest in justice

Nature of Case: Libel, slander, wrongful termination

Electronic Data Involved: Privileged email

Illiana Surgery and Med. Care Ctr. LLC v. Hartford Fire Ins. Co., NO. 2:07 cv 3, 2014 WL 1094455 (N.D. Ind. Mar. 19, 2014)

Dec 01 2014

Key Insight: Following evaluation of the relevant eight part test, court declined to shift the costs of producing emails stored on Defendant?s backup system pursuant to Rule 26(b)(2)(B) (inaccessible data) but placed limitations on the discovery allowed and ordered Defendant to restore eight weeks of backup tapes at its own expense and to search them for the requested emails and invited Plaintiff to renew its motion if, after Defendant?s search was complete, it could show that ?further exploration? was necessary

Nature of Case: Insurance Litigation

Electronic Data Involved: Emails stored on backup tapes

Koninklijke Philips N.V. v. Hunt Control Sys., No. 11-3684 DMC, 2014 WL 1494517 (D.N.J. Apr. 16, 2014)

Dec 01 2014

Key Insight: Where Defendant sought to take a 30(b)(6) deposition to inquire regarding whether Plaintiff was ?using the appropriate search tools for ESI discovery,? based on Defendant?s expert?s determination that Plaintiff had ?some of most (sic) sophisticated and comprehensive state-of-the-art document search and location tools? and the assertion that ?Philips refuses to use these tools? and where Plaintiff indicated that it had always used ?a custodian-based approach to collecting ESI[ ],? and that it outsourced its collection to Microsoft Online Services and did not have a contract that permitted the type of searching and collecting suggested by the defendant, the court found that Plaintiff had adequately established the reasonableness of its approach and also reasoned that while the deposition itself would not be a burden, it would open the door to potentially burdensome additional discovery that was unlikely to be productive and thus was not warranted

Nature of Case: Appeal of decision of Trademark Trial and Appeal Board

Electronic Data Involved: ESI

Kinetic Concepts, Inc. v. Wake Forest Univ. Health Sciences, No. SA-11-CV-163-XR, 2014 WL 1787813 (W.D. Tex. May 5, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order barring defendants from obtaining CEO’s e-mails during discovery, finding that CEO had potentially relevant information that defendants might not be able to obtain from other custodians and that CEO’s high level role did not make discovery of his e-mails any more or less burdensome than producing e-mails of other executives

Nature of Case: Patent infringement

Electronic Data Involved: E-mail of CEO who joined plaintiff after lawsuit was filed

In re Indeco Sales, Inc., No. 09-14-00405-CV, 2014 WL 5490943 (Tex. App. Oct. 30, 2014)

Dec 01 2014

Key Insight: Ruling on petition for writ of mandamus, state appellate court found that trial court did not abuse its discretion in denying defendants’ motion to compel: (1) production of plaintiff’s cell phone for forensic examination and data extraction (to retrieve stored and deleted photographs and videotapes depicting plaintiff subsequent to accident, stored and deleted text messages, emails and audio recordings referencing or reflecting plaintiff’s alleged depression, etc.) and (2) production of information, data, posts and conversations from plaintiff’s Facebook page, because the requests were not properly limited in time and scope, were overly broad and could have been more narrowly tailored, and constituted an unwarranted intrusion

Nature of Case: Personal injury claims stemming from motor vehicle accident

Electronic Data Involved: Data stored on plaintiff’s cell phone; and information, data, posts and conversations from plaintiff’s Facebook page

Zeller v. S. Cent. Emergency Med. Servs., No. 1:13-CV-2584, 2014 WL 2094340 (M.D. Pa. May 20, 2014)

Dec 01 2014

Key Insight: Court ruled that plaintiff was entitled to a “first review” of results of independent forensic examination of plaintiff’s email account, and that plaintiff and defendants would share equally in cost of restoring and searching plaintiff’s emails, up to a maximum contribution by plaintiff of $1,500

Nature of Case: Family and Medical Leave Act claims

Electronic Data Involved: Plaintiff’s emails

Tag:Motion for Protective Order