Motion to Compel – Page 105 – Electronic Discovery Law

Spieker v. Quest Cherokee, LLC, 2008 WL 4758064 (D. Kan. Oct. 30, 2008)

Dec 01 2008

Key Insight: Granting leave to refile, court denied plaintiff?s motion to compel production of emails for failure to show their relevance to class certification but rejected defendants? argument that $375,000 cost of production was unduly burdensome in light of amount in controversy where defendant argued claims of named plaintiffs were worth $100,000 or less but plaintiff argued claims of the class exceeded $5 million; court also stated that where defendant was in better position to identify search terms it should do so to reduce volume, that the cost of production versus the amount in controversy did not render email data ?not reasonably accessible,? and that parties should address Rule 502 in any future discussions regarding cost, among other things

Nature of Case: Class action for failure to pay royalties arising from oil and gas leases

Electronic Data Involved: Email

Huthnance v. D.C., 255 F.R.D. 285 (D.D.C. 2008)

Dec 01 2008

Key Insight: Where defendants? radio log indicated a relevant communication occurred but where defendants were unable to produce the audio tape, court ordered defendant to produce its document retention policies to show ?whether the [communications] were maintained according to standard procedure?

Nature of Case: Claims arising from alleged illegal arrest and detention

Electronic Data Involved: Audio tapes of phonecalls, access to

Am. Mfr. Mut. Ins. Co. v. Payton Lane Nursing Home, 2008 WL 5231831 (E.D.N.Y. Dec. 11, 2008)

Dec 01 2008

Key Insight: Where plaintiffs? privilege log specified doc type, doc date, bates numbers, author, recipients and a document title but did not sufficiently describe the content of the document, court ordered production of proper log that must ?identify each document with specificity as is need to demonstrate the communication was made for the purpose of obtaining or providing legal services and that the communication was intended to be and was kept confidential.?

Electronic Data Involved: Privileged email and hard copy communications

Apsley v. Boeing Co., 2008 WL 191418 (D. Kan. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where structure of Boeing?s privilege log was result of the same emails (containing legal advice) being stored in more than one email file and/or legal advice being repeated in email strings, and Boeing listed all of the email messages by Bates number where legal communication was located, but redacted only the portion of the string that contained legal communications, court concluded that log adequately supported Boeing?s claim of privilege for multiple copies of the same communication, noting: ?The organization of a privilege log for electronic documents existing in multiple locations presents a challenge. Perhaps a better method would be to list the original legal communication by date, author and recipient and thereafter indicate that the other Bates-stamped documents are copies or a repeat of the original legal communication. However, electronic discovery is an evolving practice and Boeing will not be faulted for its efforts to organize the privilege log.?

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Church v. Wachovia Sec., Inc., 2008 WL 281091 (W.D.N.C. Jan. 30, 2008)

Dec 01 2008

Key Insight: Court ordered parties to file joint status report describing results of targeted search of defendant’s data backup system with respect to particular witness and stating their respective positions on issue of whether such results warranted further search of data backup system for emails authored by or addressed to other individuals

Nature of Case: Breach of contract, violation of North Carolina Wage and Hour Act

Electronic Data Involved: All emails relating to plaintiff or his compensation generated in past ten years by plaintiff and other Wachovia employees

Margel v. E.G.L. Gem Lab Ltd., 2008 WL 2224288 (S.D.N.Y. May 29, 2008)

Dec 01 2008

Key Insight: Where information maintained in electronic database was necessarily in a form that was not identical to report prepared on basis of that data and produced in discovery, and defendant did not claim that database was “not reasonably accessible,” court ordered defendant to produce or make otherwise available that part of electronic database that evidenced the issuance of certificates during relevant time frame

Nature of Case: Action among gem grading laboratories concerning the right to use certain trademarks in the U.S. and the right to issue grading certificates bearing those marks

Electronic Data Involved: Database containing information used to prepare report produced by defendant in discovery

Kayongo-Male v. S.D. State Univ., 2008 WL 2627699 (D.S.D. July 3, 2008)

Dec 01 2008

Key Insight: Where defendant argued it produce in hard copy format (Excel spreadsheets) all the information that defense expert relied on in creating his regression models, court ordered defendant to produce raw data in electronic format but denied plaintiff?s request to depose defense expert or persons responsible for compiling the information

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic copy of raw, unfiltered data from defendant’s human resource database which defense expert used to conduct regression analysis

Gen. Elec. Co. v. SonoSite, Inc., 2008 WL 4062098 (W.D. Wis. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where both sides argued that the other side had not produced all responsive information and it appeared to court that there were a few places in which parties may not have yet looked, court gave parties one last chance to look for responsive material before it would hold them to their ?the documents don’t exist? positions and warned that lack of diligence or forthrightness would result in sanctions; court further denied plaintiff?s request to modify protective order that required source code be made available on a computer at producing party?s office for viewing by opposing party

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Verigy US, Inc. v. Mayder, 2008 WL 4786621 (N.D. Cal. Oct. 30, 2008) (Not for Citation)

Dec 01 2008

Key Insight: Where defendant failed to produce website information because the information was maintained by and in the custody of a third party internet service provider, and because defendant could not access the materials because its account had expired, court acknowledged general rule that ?production is not ordered unless the responding party has exclusive control of the documents? and plaintiff?s failure to subpoena third party directly but nonetheless ordered defendants to ?take all necessary steps to obtain the requested documents? from third party and for the parties to split the cost

Nature of Case: Misappropriate of trade secrets

Electronic Data Involved: Website

U.S. v. Poulin, 592 F. Supp. 2d 137 (D. Me. 2008)

Dec 01 2008

Key Insight: Where defendant?s audio consultant identified potential inaccuracies between the audio tapes produced and the original recordings, and where the original recordings were subject to disclosure pursuant to Fed. R. Crim. P. 16, court granted plaintiff?s motion for access to the original Exxacom system recordings ?to confirm that the recordings?are faithful reproductions?; acknowledging defendant?s burden in re-production where many hours had already been spent, court observed, ?The Government?s burden is measured in hours; the Defendant?s in years.?

Nature of Case: Criminal production of child pornography

Electronic Data Involved: Audio recordings

Tag:Motion to Compel