Motion to Compel – Page 102 – Electronic Discovery Law

E.E.O.C. v. Outback Steakhouse of FL, Inc., 2008 WL 2410415 (D. Colo. June 11, 2008)

Dec 01 2008

Key Insight: Where information requested was relevant to EEOC?s claim, and defendants failed to provide concrete substantiation of the alleged burden, either in terms of manpower, hours, or financial resources that would be required to compile it, court ruled that, even though EEOC requested information in electronic database form, defendants’ answers were not restricted by their electronic record-keeping system; court ordered defendants to make a good faith effort to compile supplemental information from all available sources

Nature of Case: Employment discrimination

Electronic Data Involved: Employment records and information

Montgomery v. eTreppid Techs., LLC., 2008 WL 2277118 (D. Nev. May 29, 2008)

Dec 01 2008

Key Insight: Where neither party would be able to conclusively prove ownership of disputed technology without analysis of source code, court concluded that documents related to source code and other technology plaintiff claimed as trade secret were ?reasonably calculated to lead to the discovery of admissible evidence? and ordered plaintiff to produce responsive documents and ESI

Nature of Case: Copyright infringement, breach of fiduciary duty, fraud, conversion, breach of contract

Electronic Data Involved: Source code and related technology

Bianco v. GMAC Mortgage Corp., 2008 WL 4661241 (E.D. Pa. Oct. 22, 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion to compel production of defendant?s general counsel?s laptop for imaging despite testimony that the laptop had been used to create some of the documents at issue where there was no evidence of discovery misconduct, where defendant searched extensively for and produced documents responsive to plaintiff?s requests, and where the ?intrusive search? would likely lead to the disclosure of privileged and confidential information ; court noted that Rule 34 does not create ?a routine right of direct access to a party?s electronic information system, although such access may be justified in some circumstances?

Nature of Case: Discrimination and retaliation in violation of Americans with Disabilities Act

Electronic Data Involved: Hard drive, emails

In Re U-Haul Class Action Tammy Koceinda, 2008 WL 5071996 (D. Conn. Nov. 21, 2008)

Dec 01 2008

Key Insight: Court declined to compel production of emails sent between plaintiff, her attorney, and her husband, where husband was an attorney, although not the attorney of record, and where he acted as plaintiff?s ?personal attorney? and provided legal advice regarding ongoing litigation

Nature of Case: Class action breach of contract

Electronic Data Involved: Email

Orbit One Commc?ns, Inc. v. Numerex Corp., 2008 WL 4778133 (S.D.N.Y. Oct. 31, 2008)

Dec 01 2008

Key Insight: Where defendant/successor corporation acquired computer and server utilized by plaintiff/predecessor corporation in pre-acquisition operation of predecessor company but plaintiff asserted privilege as to certain pre-acquisition documents in response to subpoena from defendant, court ruled documents were protected by privilege, despite presence on acquired hardware, where plaintiff removed allegedly privileged and personal documents prior to defendant?s access and control of hardware and thus had a reasonable expectation of privacy; court ordered production of non-privileged materials and categorical privilege log and declined to sanction plaintiff for removal of documents from acquired hardware where plaintiff acted to preserve the documents and agreed to produce non-privileged material

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Powell v. Sharpsburg, 2008 WL 5422577 (E.D.N.C. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where defendant willfully destroyed relevant work orders pursuant to its document retention policy but where defendant should have been aware of the relevance of the documents and the resulting duty to preserve, court ordered adverse inference in favor of plaintiff and prohibited defendants from introducing secondary evidence of contents of spoliated documents

Nature of Case: Title VII action for discriminatory discipline based on race

S. Capitol Enters., Inc. v. Conseco Servs., Inc., 2008 WL 4724427 (M.D. La. Oct. 24, 2008)

Dec 01 2008

Key Insight: Noting that ?perfection in document production is not required?, court denied plaintiffs? motion for sanctions or additional discovery orders where defendants offered valid reasons for the non-production of some data, performed a thorough search of their systems for the requested information, and explained that there were no other sources to search and where the burden of production outweighed the likely benefit; court indicated that ?experts can extrapolate and estimate from available data in order to perform calculations and provide opinions.?

Electronic Data Involved: ESI

Liberty Mut. Ins. Co. v. Tedford, 2008 WL 2080930 (N.D. Miss. May 13, 2008)

Dec 01 2008

Key Insight: Ruling on various disputed discovery requests, court overruled insurer?s overbroad and unduly burdensome objections to interrogatory seeking information about similar claims made against insurer within last ten years, and agreed with defendant that it was not necessary to rely on computer retrieval of relevant information, but on information provided by employees, and that there may be less expensive means of determining the existence of such information: ?For example, an e-mail to all Liberty Mutual employees asking if they recall any such claims or cases in the last ten years is a simple, inexpensive means of discovering whether any claims were ever made in Mississippi. Liberty Mutual has a duty to at least attempt to determine if information responsive to this interrogatory exists, if not by computerized search of files (a general search of a computer data base surely would be a start), then at least by inquiry of employees who may have relevant, discoverable information. At a minimum, a good faith effort is required.?

Nature of Case: Insurance coverage

Electronic Data Involved: Information regarding similar claims made against insurer

Hightower v. Heritage Acad. of Tulsa, Inc., 2008 WL 2937227 (N.D. Okla. July 29, 2008)

Dec 01 2008

Key Insight: Observing that defendant had not argued that requested emails were not reasonably accessible and had not otherwise demonstrated that production of emails by four identified individuals on single topic over four-year period was unduly burdensome, court rejected defendant?s overbreadth and burdensome objections and ordered defendant to produce responsive documents

Nature of Case: Employment discrimination, wrongful termination

Electronic Data Involved: Emails sent or received by four members of defendant’s Board of Trustees pertaining to plaintiff and/or her employment

Cantrell v. Cameron, 195 P.2d 659 (Colo. 2008)

Dec 01 2008

Key Insight: Finding the court abused its discretion when it ordered production of a laptop for inspection but declined to incorporate restrictions or narrow scope of inspection and denied defendant?s motion for a protective order despite confidentiality concerns including attorney-client privilege and proprietary business information, appellate court vacated order and directed lower court to issue protective order limiting scope of inspection; court noted that while personal computers do implicate confidentiality issues requiring ?serious consideration of a person?s privacy interest,? ?a personal computer?s contents are not confidential by nature?

Nature of Case: Traffic accident resulting in personal injury

Electronic Data Involved: ESI, laptop

Tag:Motion to Compel