Motion to Compel – Page 121 – Electronic Discovery Law

MacNamara v. City of New York, 2006 WL 3298911 (S.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court ordered production of handwritten worksheets used to compile database in light of demonstrated data entry errors that made accuracy of database printouts suspect; court also sustained objection to request for “all electronic data concerning RNC arrests” as impermissibly vague

Nature of Case: Litigation arising from arrests during 2004 Republican National Convention

Electronic Data Involved: Worksheets underlying database

Discover Fin. Servs., Inc. v. Visa U.S.A., Inc., 2006 WL 3462125 (S.D.N.Y. Nov. 29, 2006)

Dec 01 2006

Key Insight: Court declined to compel American Express to search for email sent from and to certain executives who were no longer employed by American Express, since the moving parties had not agreed to search for email sent from or to their own former executives and American Express had already produced some 27,501 emails sent to or from certain former executives through the production of email from other custodians

Nature of Case: Antitrust

Electronic Data Involved: Email of former executives

Chavannes v. Protective Life Ins. Co., 232 F.R.D. 698 (S.D. Fla. 2006)

Dec 01 2006

Key Insight: Where plaintiff had originally asserted work product protection regarding videotape recording of insured’s funeral, but failed to adequately explain the circumstances which led to his statements that the video existed or the circumstances surrounding his claimed discovery that no such video existed, court ordered plaintiff to produce video or explain in detail any reasons for non-production

Nature of Case: Beneficiary sued insurer to recover death benefit

Electronic Data Involved: Videotape recording of funeral

In re Benun, 339 B.R. 115 (Bankr. D.N.J. 2006)

Dec 01 2006

Key Insight: Where trustee, in a practical attempt to maximize assets and minimize expenses, attempted to reach blanket accord with patent holder’s counsel that document inspection would not serve as a waiver of the attorney-client privilege, disclosure of privileged document was inadvertent and did not constitute waiver; court denied patent holder’s motion to depose attorney who had represented both debtor and his corporation in infringement action and compel production of certain documents from attorney’s files

Nature of Case: Lengthy adversary proceeding brought by party suing debtor for patent infringement

Electronic Data Involved: Hard copy documents and “massive hard drive” assembled by bankruptcy trustee for safekeeping

Oved & Assocs. Constr. Servs., Inc. v. Los Angeles County Met. Transp. Auth., 2006 WL 1703824 (Cal. App. June 22, 2006) (Nonpublished, Noncitable)

Dec 01 2006

Key Insight: No abuse of discretion to impose terminating sanctions against plaintiff after years of “discovery stonewalling” which culminated in the intentional destruction of evidence; plaintiff “regularly and routinely” disobeyed trial court orders and intentionally destroyed relevant accounting records on hard drive that was to be mirror imaged

Nature of Case: Misappropriation of funds

Electronic Data Involved: Accounting files on hard drive

OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006)

Dec 01 2006

Key Insight: Court denied party’s motion to compel financial data in searchable electronic format in part because moving party had itself refused to produce its financials in searchable electronic format

Nature of Case: Patent litigation

Electronic Data Involved: Financial materials produced on CD in unsearchable “TIFF” format

Loving v. N’Namdi, 2006 WL 3456311 (S.D.N.Y. Nov. 29, 2006)

Dec 01 2006

Key Insight: Where record showed that defendants’ record keeping was episodic at best, and that existing documentation was inaccurate and possibly manufactured for the litigation, court directed plaintiff, if she wished to undertake a forensic examination of any computer, to provide a detailed affidavit by a specialist who would conduct such testing, including a precise specification of what is to be done, for what purpose and in what period of time

Nature of Case: Breach of fiduciary duty against art gallery

Electronic Data Involved: Computer hard drive

Discover Fin. Servs., Inc. v. Visa U.S.A., Inc., 2006 WL 3230157 (S.D.N.Y. Nov. 8, 2006)

Dec 01 2006

Key Insight: Court ruled that American Express would be allowed to conduct a Rule 30(b)(6) deposition to address the topics of Wells Fargo’s document retention, collection and production efforts in the litigation, but that such deposition would be limited to three hours; court further noted: “American Express and Wells Fargo have each declined to produce certain information, for example, the content of their ‘litigation hold’ notices. In such situations, it is unlikely that I would compel one party to produce such information, unless American Express and all of the Bank Defendants stipulate to simultaneous exchange of all their information concerning a given topic.”

Nature of Case: Antitrust

Electronic Data Involved: Legal hold notices

Cornell Research Found., Inc. v. Hewlett-Packard Co., 2006 WL 5097357 (N.D.N.Y. Nov. 13, 2006)

Dec 01 2006

Key Insight: Court found that litigation tactic employed by HP, in making such an extraordinary voluminous, twelfth hour production, was “disturbing,” but denied plaintiffs’ request that HP prepare a detailed index of material produced since it would be unduly harsh and potentially intrusive on attorney work product; court instead invited plaintiffs to seek additional, limited discovery if appropriate and noted tactic might be relevant to court’s declaring the lawsuit an exceptional case for purposes of awarding attorneys’ fees and costs in the event plaintiffs’ infringement claims were successful

Nature of Case: Patent infringement

Electronic Data Involved: Over 38 gigabytes of ESI produced late in discovery

Optowave Co., Ltd. v. Nikitin, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where, despite repeated warnings not to destroy relevant evidence, defendant allowed another party to reformat hard drives of his employees’ computers without first preserving relevant files contained on computers to be reformatted, resulting in loss of crucial electronic evidence, court found that adverse inference instruction was appropriate sanction

Nature of Case: Breach of contract

Electronic Data Involved: Email and customer files

Tag:Motion to Compel