Motion to Compel – Electronic Discovery Law

Calhoun v. Google LLC (N.D. Cal. 2022)

Jun 06 2022

Key Insight: This matter relates to the court’s order to compel and order to show cause as to why Google should not be sanctioned for interfering with the production of third-party Ernst & Young (E&Y) documents ordered by the court. Plaintiff subpoenaed E&Y for documents relating to the valuation of certain user information. Google moved for a protective order and the court granted in part and denied in part the motion, narrowly tailoring the allowed requests. E&Y then identified 6,322 responsive documents and Google reviewed and deselected 6,232 documents on the basis of relevance, resulting in E&Y’s production of 90 documents. Google maintains it was justified in working with E&Y to cull irrelevant documents from the final production. The court noted: “Googles proffered ‘justification,’ primarily that the documents reflect highly confidential financial information not relevant to the claims in suit, was heard and rejected by this Court twice.” The court ordered Google to pay plaintiff’s fees and costs for having to bring the motion to compel.

Nature of Case: Data Privacy Class Action

Electronic Data Involved: Financial documents

Case Summary

Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)

May 18 2022

Key Insight: The court was required to balance the proportionality factors to determine whether plaintiff’s proposed search terms that would require defendants to review 1.3 million documents were proportional to the needs of the case or if defendants’ proposal to review half as many documents was more proportional. In applying the proportionality factors, the court found it a “close call” but granted the motion in plaintiff’s favor, ordering defendants to apply plaintiff’s proposed search terms and to begin review of the documents and produce them on a rolling basis.

Nature of Case: Securities Fraud

Electronic Data Involved: Email

Case Summary

Jordan Khan Music Co. v. Taglioli (E.D. Tex. 2022)

May 12 2022

Key Insight: Plaintiffs moved to compel the forensic examination of defendants’ devices and data storage for imaging and inspection, along with their licenses for all software used for their businesses. Plaintiffs claimed the discovery was relevant to their RICO claim, alleging continued criminal copyright infringement of unlicensed software as a predicate act. Defendants claimed forensic examination would be vastly disproportionate to the issue. The court agreed with defendants and denied plaintiffs’ motion to compel, finding the forensic examination would allow plaintiffs to become privy to information beyond the scope of audio software and they could engage in the discovery process in a less invasive but still worthwhile manner. Accordingly, the court ordered that defendant revise their boilerplate objections and respond to plaintiffs discovery requests to identify computers, storage mediums and software used in Defendants’ business within a specific time frame.

Nature of Case: Trademark Infringement

Electronic Data Involved: Electronic Devices, Computers, Software

Case Summary

In re Actos End Payor Antitrust Litig. (S.D.N.Y. 2022)

Mar 30 2022

Key Insight: On plaintiff’s motion to compel, the magistrate judge ruled that defendant Takeda was to produce “all responsive ESI to Plaintiffs, including earlier-in-time emails.” In its production, Takeda had used email threading by which a party reviews and produced the most-inclusive email in a thread. The Discovery Protocol did not permit that approach. The magistrate emphasized the need for parties to have early discussions regarding ESI to avoid later misunderstandings and disputes. Takeda’s exclusion of lesser included emails from production resulted in the exclusion of metadata associated with the earlier chain emails. The magistrate declined to impose email threading on plaintiffs and recognized that while requiring Takeda to produce earlier-in-time emails would cause additional burden, such burden is not undue since Takeda agreed to the Discovery Protocol and likely has already reviewed many of the emails at issue.

Nature of Case: Antitrust

Electronic Data Involved: Email

Case Summary

Orchestrate HR, Inc. v. Blue Cross and Blue Shield of Kansas, Inc. (D. Kan. 2022)

Mar 21 2022

Key Insight: The Magistrate denied defendant’s motion to add plaintiffs outside counsel as a list of documents custodians for ESI discovery purposes. The court noted that relatively little legal authority exists on the standards to apply when parties cannot agree on designated ESI custodians. Relying on the limited legal authority and The Sedona Principles, the court noted as follows: (1) determining what is relevant and proportional is a highly fact-specific inquiry; (2) absent agreement among the parties, the party responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information; (3) unless the party’s choice is unreasonable or results in a deficient production, the court should not dictate ESI custodians; and (4) the party seeking to compel the designation of a particular custodian has the initial burden to show that the disputed custodian’s ESI is relevant to the claims or defenses.

Nature of Case: Tort Claims

Electronic Data Involved: Email

Case Summary

Famulare v. Gannett Co., Inc. (D.N.J. 2022)

Mar 17 2022

Key Insight: The discovery dispute involved whether defendants are obligated to produce screenshots of certain computer generated reports from defendants’ computer program known as Salesforce. Salesforce maintains and memorializes various performance metrics of individual account executives. Plaintiff generated and printed some of her own performance metrics and seeks in discovery the same reports for certain other defendant employees for purposes of comparison. Defendants assert that the reports are not free-standing, fixed reports but are screenshots of the Salesforce dashboard and they cannot generate reports but can only provide her with the underlying historical data in Excel, which they already provided. The court affirmed the magistrate judge’s opinion, ruling that whether Salesforce is incapable of generating and printing the reports as they maintain it is would need to be determined by a Rule 30(b)(6) deposition. The functionality of the Salesforce data is the core issue in the motion and the court reiterated the magistrate’s sentiments that until the deposition is completed, the nature of the Salesforce program and its capabilities are unknown.

Nature of Case: Employment Discrimination

Electronic Data Involved: Screenshots

Case Summary

Aminov v. Berkshire Hathaway Guard Insurance Companies (E.D.N.Y. 2022)

Mar 03 2022

Key Insight: Defendant moved to compel plaintiff to produce for forensic examination the cell phone that recorded videos produced by Plaintiff. The court denied the motion, noting there must be good cause to order forensic examination when a party has already produced the electronic information sought and in native format. Defendant alleges there was a reason to believe metadata for the video was altered based on counsel’s own analysis using a free online metadata tool. After investigating the online metadata tool, including uploading a court document that did not contain any metadata, the court found that the tool shows an automatic message for every file that is uploaded to the website indicating that metadata “could have been changed or deleted” – something court noted “is hardly the thing on which one should base a motion to compel.”

Nature of Case: Breach of Contract

Electronic Data Involved: Cell phone

Case Summary

Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)

Feb 04 2022

Key Insight: Plaintiffs argue that defendants’ claims of privilege should be overruled due to the crime-fraud exception. Defendants withheld emails claiming work product and attorney-client privilege. Plaintiffs have not argued that the emails are not covered by either the work product doctrine or the attorney-client privilege. The purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud or crime.” In order to avail itself of the crime-fraud exception, the party seeking disclosure must satisfy a threshold showing of “a factual basis adequate to support a good faith belief by a reasonable person that the [party asserting the privilege] was engaged in intentional fraud and communicated with counsel in furtherance of the fraud.” The court found that plaintiffs’ assertions do not satisfy the threshold showing as they amount to conjecture since there is no other evidence that the communications were made in furtherance of a crime or fraud.

Nature of Case: Antitrust

Electronic Data Involved: Emails

Case Summary

In re Diisocyanates Antitrust Litigation (W.D. Penn. 2022)

Jan 07 2022

Key Insight: This multidistrict litigation involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), chemicals used in the manufacture of polyurethane foam and thermoplastic polyurethanes. The parties filed competing motions to compel regarding the use TAR and search terms. Plaintiffs moved to compel an order requiring the defendants to use plaintiff’s proposed search terms, or alternatively, to establish a process by which disputed search terms could be adjudicated. The E-Discovery Special Master made a recommendation to deny the motions and directed the parties to his prior report and recommendation on the parties’ TAR protocols to address concerns he raised their regarding the parties’ methodologies.

Nature of Case: Antitrust MDL

Electronic Data Involved: ESI

Case Summary

Axis Ins. Co. v. American Specialty Ins. & Risk Servs., Inc. (December 2021)

Dec 06 2021

Key Insight: The court affirmed the Magistrate’s order granting (in part) plaintiff’s motion to compel discovery to produce documents, to correct metadata issues and to pay expenses plaintiff incurred in pursuing the motion to compel. Defendant only objected to the Magistrate’s order on the fee request. The court adopted the magistrate judge’s order granting a provisional award of fees and costs. It found that the defendant’s opposition to the motion to compel discovery was not substantially justified under FRCP 37(a)(5)(A).

Nature of Case: Breach of Contract

Electronic Data Involved: ESI

Case Summary

Tag:Motion to Compel