Motion for Protective Order – Page 9 – Electronic Discovery Law

Baker v. Bayer Healthcare Pharm., Inc., No. 13-cv-00490-THE (KAW), 2014 WL 5513854 (N.D. Cal. Oct. 31, 2014)

Dec 01 2014

Key Insight: Finding that sales call notes that plaintiff sought, as opposed to only those concerning plaintiff’s healthcare provider, were relevant, but agreeing that producing all sales call notes for tens of thousands of healthcare providers was unduly burdensome and disproportionate to the needs of this single-plaintiff case, court sought to strike a balance between plaintiff’s entitlement to information relevant to her claims and need to ease defendant’s burden of production, and ordered production of sales call notes that had already been produced in related multidistrict litigation involving over 1,500 plaintiffs; court noted that production in related MDL was limited to the plaintiffs? specific prescribing physicians but that the volume that production would yield would give plaintiff a substantial cross-section of sales call notes without burdening defendant with production of sales call notes for every physician in every market in which the device was promoted

Nature of Case: Single-plaintiff products liability lawsuit

Electronic Data Involved: Databases containing sales call notes from conversations between defendant’s sales representatives and healthcare providers

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production

Nature of Case: Breach of fiduciary duties, negligence

Electronic Data Involved: ESI

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Dec 01 2014

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

JPMorgan Chase Bank, N.A., v. East-West Logistics, LLC, No. 1-12-1111, 2014 WL 1292905 (Ill. App. Ct. Mar. 31, 2014)

Dec 01 2014

Key Insight: Trial court did not abuse its discretion when it ordered defendant to pay $3,026 of plaintiff’s requested $18,771 electronic discovery costs, as court had discretion under court rule to issue a protective order as justice required, had ordered the parties to confer on the scope of production and reserved the allocation of costs, and had properly balanced defendant’s need for the discovery material against the expense of the production incurred by plaintiff

Nature of Case: Action to collect amounts due under credit agreement and enforce guaranty

Electronic Data Involved: Electronically stored documents

Stinson v. City of New York, no. 10 Civ. 4228(RWS), 2014 WL 5090031 (S.D.N.Y. Oct. 10, 2014)

Dec 01 2014

Key Insight: Where defendants inadvertently produced two privileged documents along with large volume of ESI, and 14 days later notified plaintiffs of such inadvertent production, and six days after that filed motion for order to show cause to compel plaintiffs to immediately return the privileged documents, court rejected plaintiffs? contention that they should be allowed to retain and review a copy of the privileged documents for the purpose of opposing the privilege claim and ordered plaintiffs to return all copies of the privileged documents to defendants; plaintiffs would be permitted to rely on any material learned prior to defendants? letter in challenging defendants? assertion of privilege

Nature of Case: Section 1983 class action against city, police department commissioner, and police officers, alleging defendants had a policy of issuing unconstitutional summonses in violation of First, Fourth, Fifth, Eighth, and Fourteenth Amendments

Electronic Data Involved: Privileged ESI

Cochran v. Caldera Med., Inc., No. 12-5109, 2014 WL 1608664 (E.D. Pa. Apr. 22, 2014)

Dec 01 2014

Key Insight: In case where defendant represented that it was currently defending approximately 1,709 claims nationwide involving its various products, and that it had limited financial resources, court denied defendant’s request that plaintiffs share in the cost of producing documents and ESI as defendant did not demonstrate that ESI sought by plaintiffs was inaccessible; court further noted that, given the importance of the discovery requests to plaintiffs’ ability to prove their claims, and the seriousness of the injuries alleged by plaintiffs, the burden or expense of the discovery requests was outweighed by the likely benefit to plaintiffs

Nature of Case: Product liability re implantable surgical meshes

Electronic Data Involved: ESI, text messages, voicemail messages

BLX Commercial Capital, LLC v. Bilco Tools, Inc., No. 14-0306, 2014 WL 6684929 (E.D. La. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where defendants requested emails from six employees and all emails regarding liquidation and appraisal of Bilco, and request was further narrowed by the use of eight search terms, plaintiff?s counsel was unable to articulate a specific reason why emails were not relevant and represented to the court that he had not actually reviewed any of the emails at issue to determine their relevancy, court denied plaintiff?s motion for protective order and granted defendants? motion to compel production of emails

Nature of Case: Breach of loan agreement

Electronic Data Involved: Email of current and former BLX employees

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

Tag:Motion for Protective Order