Motion to Compel – Page 130 – Electronic Discovery Law

United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005)

Dec 01 2005

Key Insight: In connection with criminal defendant’s request for certain emails and correspondence, court held that the term “government” included all agencies and departments of the Executive Branch of the government and all subdivisions thereof and it was insufficient for Justice Department merely to state that certain documents were not in its possession and it was continuing to make inquiries; Justice Department ordered to immediately and by formal request in writing, demand that GSA conduct a thorough search and produce all relevant emails, including archived emails on employees’ hard drives

Nature of Case: Criminal prosecution for obstruction of justice

Electronic Data Involved: Email and archived email

Export-Import Bank of U.S. v. Asia Pulp & Paper Co., Ltd., 2005 WL 3078208 (S.D.N.Y. Nov. 17, 2005)

Dec 01 2005

Key Insight: Court allowed reopening of discovery and ordered plaintiff to produce former employee’s personal journals that were relevant to parties’ dispute, where former employee revealed existence of journals in deposition taken during last week of discovery; court further granted defendant leave to subpoena former employee directly in the event plaintiff was unable to take possession of the journals

Nature of Case: Action to recover promissory note debt

Electronic Data Involved: Former employee’s personal journal maintained on home computer

Frye v. St. Thomas Health Servs., Inc., 2005 WL 5417506 (Tenn. Cir. Ct. Mar. 30, 2005)

Dec 01 2005

Key Insight: Court denied motion to compel production of defendant’s hard drives so that plaintiff’s computer forensics expert could search them for deleted emails since there was no evidence that defendant had consciously or purposely deleted emails and plaintiff had only “suspicions and allegations” which did not justify the costly and burdensome search requested

Nature of Case: Age discrimination

Electronic Data Involved: Deleted email

McCarthy v. Philips Elecs. N. Am. Corp., 2005 WL 6157347 (N.Y. Sup. Ct. June 9, 2005)

Dec 01 2005

Key Insight: Where plaintiff?s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants? backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants? efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval

Nature of Case: Disability discrimination

Electronic Data Involved: Emails, hard drives

Okoumou v. Safe Horizon, 2005 WL 2431674 (S.D.N.Y. Sept. 30, 2005)

Dec 01 2005

Key Insight: Although plaintiff was free to pursue discovery of archived emails on obsolete email system, the extent to which those emails were discoverable and the allocation of costs to restore them would require further analysis; court directed plaintiff to notify the court if she intended to pursue the archived email

Nature of Case: Wrongful termination

Electronic Data Involved: Archived email from obsolete email system

Steadfast Ins. Co. v. Purdue Frederick Co., 2005 WL 3511085 (Conn. Super. Ct. Nov. 30, 2005) (Unpublished)

Dec 01 2005

Key Insight: Deciding there should be a presumption in favor of finding inadvertence, court denied plaintiff’s motion to compel production of privileged documents “recalled” by defendant under stipulated inadvertent production provision; court further advised that (1) production of documents without any privilege review whatsoever is not an inadvertent, but rather a purposeful, act unless the parties had an agreement otherwise; and (2) the purpose of the parties’ inadvertent production provision was not to allow the producing party to consciously change its mind post-production about whether or not to claim the privilege

Nature of Case: Insurance coverage

Electronic Data Involved: Privileged email

Davila v. Patel, 2005 WL 2248350 (E.D. Pa. Sept. 13, 2005)

Dec 01 2005

Key Insight: Court ordered defendants to produce American College of Radiology reports during certain time frame, to produce all information pertaining to plaintiff contained in, or retrievable from, their computer systems, and, if requested by the United States, to make available for deposition persons with knowledge of the computer system maintained by hospital during certain time frame

Nature of Case: Medical malpractice

Electronic Data Involved: All information pertaining to plaintiff contained in, or retrievable from, defendants’ computer systems

In re Natural Gas Commodity Litig., 2005 WL 3036505 (S.D.N.Y. Nov. 14, 2005)

Dec 01 2005

Key Insight: Court narrowed scope of subpoena and ordered plaintiff and third party to negotiate a reasonable “sample” protocol and search protocol to expedite production, limit the burden and perhaps develop information to return to court to refine the court’s ruling

Nature of Case: Securities class action

Electronic Data Involved: Spreadsheets

Comcast of Los Angeles, Inc. v. Top End Int’l, Inc., 2003 WL 22251149 (C.D. Cal. July 2, 2003)

Dec 01 2004

Key Insight: Defendants could not assert the privilege against self-incrimination to resist production of corporate records; court ordered individual defendants to produce all the business records on their computers

Nature of Case: Cable TV provider sued defendants alleging a scheme to illegally manufacture and sell cable TV descramblers

Electronic Data Involved: Computerized sales data

Fresenius Med. Care Holding Inc. v. Baxter Int’l, Inc., 224 F.R.D. 644 (N.D. Cal. 2004)

Dec 01 2004

Key Insight: Magistrate found good cause to grant motion to compel where deponent identified source code in deposition which had not been produced; court ordered defendant to produce sworn declaration setting forth the specific efforts it made to locate responsive documents and either a certification that all documents have been produced, or an explanation of why the documents have not yet been produced

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Tag:Motion to Compel