Motion for Protective Order – Page 9 – Electronic Discovery Law

The Shaw Group Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 4373210 (M.D. La. Sep. 3, 2014)

Dec 01 2014

Key Insight: Where parties? agreed protective order stated that parties would endeavor to agree on search terms to be utilized in the search for responsive ESI, and current discovery dispute centered solely on the reasonableness of the search terms chosen by each party and the willingness of the parties to negotiate reasonable search terms, court rejected defendant?s proposed list of 90 search terms in light of plaintiff?s showing that the broad search would result in undue burden and expense by generating an excess of irrelevant documents, and instead ordered plaintiff to search for responsive documents using plaintiff?s 28 proposed search terms and protocol which the court found reasonable and well-tailored to locate responsive documents; court faulted parties for their lack of diligence in completing discovery within the court?s deadlines, observing: ?In short, both sides chose to do nothing, waiting to see if the other side would blink first. In doing so, they have compromised the deadlines in the court?s scheduling order, the briefing on dispositive motions, and have essentially gambled with the parameters of ESI discovery.?

Nature of Case: Insurance dispute

In re Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corporation, No. 13 Mag. 2814, 2014 WL 1661004 (S.D.N.Y. Apr. 25, 2014)

Dec 01 2014

Key Insight: Court denied Microsoft’s motion to quash search warrant that directed Microsoft to produce the contents of one of its customer’s emails stored on a server located in Dublin, Ireland, concluding that, even when applied to information that is stored in servers abroad, an SCA warrant does not violate the presumption against extraterritorial application of American law; in reaching its decision, court analyzed structure of the SCA, its legislative history, and practical consequences that would flow from such an interpretation

Nature of Case: Motion to quash warrant issued under Section 2703(a) of the Stored Communications Act

Electronic Data Involved: Email stored on Internet Service Provider’s server located in Dublin, Ireland

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Kelley v. Smith?s Food & Drug Ctrs., Inc., No. 2:14-cv-00856-RCJ-CWH, 2014 WL 6474026 (D. Nev. Nov. 19, 2014)

Dec 01 2014

Key Insight: Store video was not protected from production by the impeachment evidence exception because the video?s impeachment value was too closely linked to its substantive value, and the evidence the video offered could not be realistically confined to use for impeachment purposes only; court granted both plaintiff?s motion to compel production of the video and plaintiff?s motion for protective order, which protected plaintiff from being forced to submit to a deposition without first being able to view the video

Nature of Case: Slip and fall

Electronic Data Involved: Store video containing footage of plaintiff’s slip-and-fall

FDIC v. Bowden, No. CV413-245, 2014 WL 2548137 (S.D. Ga. June 6, 2014)

Dec 01 2014

Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling

Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers

Electronic Data Involved: Records of failed bank

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

Farstone Tech., Inc. v. Apple, Inc., No. 8-13-cv-01537-ODW(JEMx), 2014 WL 2865786 (C.D. Cal. June 24, 2014)

Dec 01 2014

Key Insight: Court adopted plaintiff’s source-code printing provision in its entirety, rejecting as too restrictive defendant’s proposed limitations that parties may print only that source code ?necessary? to prepare court filings and pleadings, noting that the “reasonably necessary” standard had solid foundation in district?s model protective order, and rejecting as arbitrary defendant?s proposed numerical restrictions: 30-page threshold beyond which the source code printing would be presumed to be excessive, and a total cap on source code printing at the greater of 250 pages or 10 percent of the source code; court also adopted in full plaintiff?s proposed language regarding the use of source code for depositions

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Finkle v. Howard Cnty., Md., No. SAG?13?3236, 2014 WL 6835628, (D. Md. Dec. 2, 2014)

Dec 01 2014

Key Insight: District Court granted Defendant?s Motion for Protective Order and denied Plaintiff?s Motion to Compel, finding that Plaintiff?s Interrogatory seeking the identification of all email accounts, social media services, internet discussion groups, cellular telephone or text messaging services used by certain County employees from January 2010 through the present, for the purpose of issuing a subpoena to the appropriate service providers, would impose an undue burden on Defendant and that Plaintiff was not lawfully entitled to the content of those accounts under the Stored Communications Act (?SCA?); regarding its reliance on the SCA, the court specifically reasoned that ?there is no reason to invite an unfettered ?fishing expedition? into the personal communications of non-party employees without a viable reason to believe that relevant information would be accessible to Plaintiff or would be contained therein.?

Nature of Case: Employment Discrimination (Title VII)

Electronic Data Involved: Account information for all email, social media (e.g., Facebook, MySpace), discussion groups, text messaging services, etc.

Crissen v. Gupta, No. 2:12-cv-00355-JMS-WGH, 2014 WL 1431653 (S.D. Ind. Apr. 14, 2014)

Dec 01 2014

Key Insight: Court criticized plaintiff for not complying with inadvertent production provision of protective order and ordered plaintiff to delete all copies of the recalled documents and any information gleaned therefrom from its network drive, and further ruled that plaintiff may not use the documents or any work product derived therefrom unless and until it is determined that those documents should have been produced; court further awarded bank its fees and costs in connection with the motion, to be paid by plaintiff’s counsel, because the language of the claw back provision was clear and plaintiff’s counsel not only ignored that language but then took the extra step of reviewing the very documents the bank sought to recall

Nature of Case: Racketeering, fraud, unjust enrichment

Electronic Data Involved: Tax returns, bank documents containing defendants’ personal financial information, and internal bank documents

Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., No. 12-2350-SAC, 2014 WL 806122 (D. Kan. Feb. 28, 2014)

Dec 01 2014

Key Insight: Court denied in most respects plaintiff’s motion for protective order, finding that plaintiff’s undue burden and expense arguments were unsupported and conclusory; court further denied plaintiff’s alternative proposal to shift some of the uncalculated ESI costs onto defendants as plaintiff failed to show that the disputed ESI production was inaccessible because of undue burden or cost, and because other relevant factors did not weigh in plaintiff’s favor; court further denied plaintiff?s request for a discovery conference or appointment of an ESI master, and ordered the parties to meet and confer regarding the proper method to search custodian hard drives, and suggested the parties consider a clawback provision specifically for ESI harvested after running the parties? respective search terms

Nature of Case: Insurance coverage dispute

Electronic Data Involved: ESI in databases and stored on custodian hard drives

Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)

Dec 01 2014

Key Insight: Where defendant put ESI at issue by stating that plaintiff was fired, in part, for improper, personal use of the city’s computers, ESI relating to computer usage by plaintiff and certain others was relevant and city should have placed litigation hold on plaintiff’s immediate coworkers, those holding similar positions within the city, and the identified “key players”; court ordered city to bear the cost of forensic restoration

Nature of Case: Wrongful termination

Electronic Data Involved: E-mail, internet usage logs, and other ESI

Tag:Motion for Protective Order