Motion to Compel – Page 105 – Electronic Discovery Law

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

Opperman v. Allstate N.J. Ins. Co., 2008 WL 5071044 (D.N.J. Nov. 24, 2008)

Dec 01 2008

Key Insight: Court granted plaintiffs? request for access to third party?s proprietary software where court determined software and its underlying processes were relevant to plaintiffs? claims and that all less intrusive means to obtain the necessary information had been exhausted; court?s order allowed access to the software by plaintiffs? expert but protected the confidentiality of the information with a protective order that placed limitations on who may access the software and limited the use of the information solely to the litigation

Nature of Case: Challenge to accuracy of insurance company estimates for fire damage

Electronic Data Involved: Proprietary software

Superior Prod. P?ship d/b/a/ PBSI v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D. Ohio Dec. 2, 2008)

Dec 01 2008

Key Insight: Court ordered electronically stored documents produced in native format in light of preference for such production in Rule 26 and where no obstacles to production were articulated; where plaintiff requested production of large volume of relevant documents and where deposition witness indicated that the information would be easily retrieved from defendant?s electronic database, court recognized potential burden to defendant and ordered production of sampling of documents to allow for determination of the need to produce the rest; court also ordered parties to meet and confer regarding the necessary volume of production of documents related to cost where documents were necessary to address the accuracy of previously produced summary and thus production of all such documents was not required, where information was available in electronic format, though, defendants were ordered to produce it

Nature of Case: Predatory pricing

Electronic Data Involved: ESI

Overlap Inc. v. Alliance Bernstein Invs., Inc., 2008 WL 5780994 (W.D. Mo. Dec. 29, 2008)

Dec 01 2008

Key Insight: Court found defendant failed to establish burden of proving ESI was not reasonably accessible where testimony established the relevant computer system could b searched in-house with ?minimal? time spent and ordered defendant to search for and produce the information requested and to bear the associated costs; court ordered search of backup tapes without deciding the issue of reasonable accessibility where plaintiff established ?good cause? for why the tapes should be searched and ordered defendants to search for and produce the information requested and to bear the associated costs

Nature of Case: Breach of contract/warranty

Electronic Data Involved: ESI

Relion v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D. Or. Dec. 4, 2008)

Dec 01 2008

Key Insight: Finding that plaintiff ?did not pursue all reasonable means of preserving privilege? court found that attorney client privilege was waived when plaintiff unintentionally produced two privileged emails in hard copy despite conducting a privilege review and because plaintiffs failed to discover the production until revealed by defendants despite having both paper and electronic, text-searchable copies of the documents produced

Electronic Data Involved: Email

Karim v. Natural Stone Indus., Inc., 2008 WL 429627 (N.Y. Sup. Ct. Jan. 18, 2008)

Dec 01 2008

Key Insight: Where computer hard drive was not relevant and material to plaintiff’s ability to return to employment, evidence regarding plaintiff?s employability was ascertainable by other means, and it would be impossible to discern plaintiff?s computer usage beyond the use testified to at deposition given that several members of plaintiff’s household also used the computer, court denied as improperly invasive third-party defendant?s request for a ?clone? of plaintiff’s home computer hard drive

Nature of Case: Injured construction worker sued for violations of New York Labor Law and for common law negligence

Electronic Data Involved: Plaintiff’s home computer

Tag:Motion to Compel