Motion to Compel – Page 37 – Electronic Discovery Law

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)

Dec 01 2016

Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?

Nature of Case: Trademark infringement

Electronic Data Involved: Customer service emails, call recordings

Colonial Bancgroup, Inc. v. Pricewaterhousecoopers LLP., No. 2:11-cv-746-WKW, 2016 WL 9687001 (M.D. Ala. Jan. 22, 2016)

Dec 01 2016

Key Insight: Where plaintiff sought production of specific folders from e-mail inboxes after defendant had already produced e-mails from those custodians as identified by keyword search terms r, the court found the request duplicative and denied plaintiff?s request. Where plaintiff sought to compel additional searches likely to capture information well beyond that to which plaintiff was entitled and resisted a compromise offer of running the searches with restrictive terms designed to weed out irrelevant information, the court granted the request for additional searches but also granted defendant?s request to include limiting terms to restrict the capture of irrelevant data. Where plaintiff requested a sworn affidavit detailing defendant?s litigation hold efforts including the ?specific actions? which hold notice recipients were directed to take and any enforcement efforts, the court agreed with defendant that specific actions and enforcement efforts were subject to attorney-client privilege but directed plaintiff to ?provide this information via ?sworn affidavit? in a manner which, does not invoke the work product doctrine or violate the attorney-client privilege OR to make a specific legal and factual showing [] as to any work product objection or attorney-client privilege claim? and also ordered production of the other requested information, including custodian names and document types subject to the hold.

Nature of Case: Professional Negligence

Electronic Data Involved: e-mail

Lewis v. Bellows Falls Congregation of Jehovah?s Witnesses, No. 1:14-cv-205, 2016 WL 589867 (D. Vt. Feb. 11, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel relevant contents of Plaintiff?s Facebook account but was not ?persuaded that unfettered access was warranted? and therefore ordered Plaintiff?s counsel to review Plaintiff?s ?entire Facebook account? to determine the relevance of the material therein, as determined by the court?s identification of 7 categories of relevant materials

Nature of Case: [N]egligence based on a duty (1) to perform an undertaking and (2) to supervise

Electronic Data Involved: Social Media contents (Facebook)

Wai Feng Trading Co. v. Quick Fitting, Inc., Nos. 13-33S, 13-56S, 2016 WL 4184014 (D.R.I. June 14, 2016)

Dec 01 2016

Key Insight: Following several extensions of discovery, court addressed motion to compel production of documents and email in native format and, noting that a particular format was not requested and that the parties? had consistently produced documents in hard copy or in searchable PDF format, found that only two documents ?arguably might contain metadata that could be relevant? and ordered that those documents be produced, but shifted the costs to the requesting party

Nature of Case: Theft of intellectual property, breach of contract

Electronic Data Involved: Emails, database, ESI

Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)

Dec 01 2016

Key Insight: Court granted in part Plaintiffs? motion to compel additional searching in two previously excluded timeframes, denying the motion as to documents generated at a time in which ?nothing of significance was happening? as indicated by Defendants and because the cost and burden of the requested discovery would violate the rule of proportionality but granting the motion as to information created after the filing of the complaint, where the court rejected Defendants? claim that nothing created after that time could have possibly been relevant and noted that Defendants failed to present any specific argument about undue burden, apart from having disassembled their review teams

Nature of Case: Breach of contract

Electronic Data Involved: ESI from previously unsearched timeframes

Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570, 2016 WL 3893135 (W.D. Va. July 13, 2016)

Dec 01 2016

Key Insight: Court granted motion to compel additional searching of Defendant?s computer systems and declined to order cost shifting despite Defendant?s claim that its inability to conduct a global search of its systems and resulting need to rely on a vendor rendered the search disproportional to the needs of the case where the court reasoned that Defendant had not carried its burden to show the information was inaccessible (?i.e., must be restored, de-fragmented, or reconstructed) and instead relied upon the expense of contracting with an outside vendor and that the necessary expense was the result of Defendant?s choice to use a system that did not preserve emails in a readily searchable format; ?Proportionality consists of more than whether the particular discovery method is expensive.?

Nature of Case: Employment litigation

Electronic Data Involved: ESI, including email

Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)

Dec 01 2016

Key Insight: Where Defendants requested a full archive of social media contents from the decedent and her next of kin from 2007 through the date of Plaintiff?s death in April 2013, the court acknowledged that some social media content may be relevant to the claims and defenses at issue but found that where the request was not tailored to relevant content or limited to a reasonable period of time it was overbroad and Defendants? motion to compel was denied

Nature of Case: Wrongful death

Electronic Data Involved: Social media (Facebook)

Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Moore v. Lowe?s Home Centers, LLC, No. 14-1459 RJB, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)

Dec 01 2016

Key Insight: Court declined to compel Defendant to conduct additional searches of witnesses? email accounts using 88 new search terms and excluding Plaintiff?s name finding that the request was ?overly broad and not proportional to the case? and reasoning that Plaintiff relied upon a multi-plaintiff case to justify her position and that she had not provided specifics regarding what she reasonably expected to find or shown that the information could not be found through other means, such as by asking additional questions of witnesses already scheduled for deposition ; court ordered Defendant to produce the relevant policies it operated under where Defendant claimed emails were deleted in the ordinary course of business according to Company policy, and that Defendant should also provide Plaintiff with the date of the deletion and the name of the person who made the deletion or the process of deletion, if known

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901 (S.D.N.Y. Nov. 16, 2016)

Dec 01 2016

Key Insight: Plaintiffs? broad request for documents previously produced by Defendants in prior investigations or produced to or received from any government agency, regulator, department, etc. related to the issues in the current investigation failed to withstand scrutiny to establish relevance beyond merely ?bear[ing] on? the issues in the investigation, particularly where Plaintiffs failed to point to any specific information that that would be found solely in the unproduced documents and not in the 1.5 million documents Defendants did produce from prior investigations (?At bottom, then, Plaintiffs? entire relevancy argument hinges on a general contention that every communication and work product related to the regulatory investigations is ?likely? to contain additional relevant information. But that sort of conclusory claim is insufficient to support such an expansive discovery request.?); court also concluded that the requested discovery was not proportional, but denied the motion without prejudice, allowing plaintiff an opportunity to renew their motion with ?narrower, more proper discovery requests.?

Nature of Case: Conspiracy to manipulate ISDAfix rates (government investigation)

Electronic Data Involved: ESI previously produced to government, all documents sent to/received from government related to issues in underlying investigation (including correspondence, subpoenas, CIDs, etc.)

Tag:Motion to Compel