Motion to Compel – Page 46 – Electronic Discovery Law

Tyler v. City of San Diego, No. 14-cv-01179-GPC-JLB, 2015 WL 1955049 (S.D. Cal. Apr. 29, 2015)

Dec 01 2015

Key Insight: Court granted Plaintiffs? Motion to Compel documents where Defendant rejected Plaintiffs? proposed search terms and protocols, but did not use search terms and protocols it deemed reasonable to produce those documents that were readily accessible and admittedly relevant. Court also refused to limit the locations Defendant was required to search for relevant documents saying, ?The City is not excused from conducting a reasonable search for all non-privileged responsive documents in City?s custody and control, regardless of location.?

Nature of Case: Sexual Harassment

Electronic Data Involved: Database

Unichappel Music, Inc. v. Modrock Prods., LLC, No. 14-2382-DDP (PLA), 2015 WL 12697738 (C.D. Cal. Aug. 28, 2015)

Dec 01 2015

Key Insight: Where responding party asserted that an at-issue request would require production of ?voluminous? irrelevant documents, that identification of the requested documents would require searching through thousands of clients files estimated to take ?one or more persons weeks to accomplish? or would cost between $8740 – $18350 if a vendor was retained to assist – not including attorney review, and that the information was available through alternative means, including depositions, the court concluded that the documents were ?at least minimally relevant? but that the burden of FULL production outweighed the benefit to the requesting party and ordered the responding party to utilize search terms or to hire a vendor to produce a more limited set of documents as prescribed by the court; court declined to shift the costs of the search , reasoning (in footnote) that ?[t]he mere fact that responding to a discovery request will require the objecting party ?to expend considerable time, effort and expense consulting, reviewing and analyzing ?huge volumes of documents and information? is an insufficient basis to object? to a relevant discovery request.?

Electronic Data Involved: ESI

Boxer F2 L.P. v. Flamingo West, Ltd. No. 14?cv?00317?PAB?MJW, 2015 WL 2106101 (D. Colo. May 04, 2015)

Dec 01 2015

Key Insight: Court said it appreciated defendants? decision to ultimately comply with its discovery obligations by producing 16,600 pages of accounting records the day after the motions hearing on the matter, but said that the untimely disclosure did not have any bearing on the fact that defendants did not allow plaintiffs access to all of their accounting records and altered those records to which they did allow access to conceal material information without valid justification. Finding that defendants acted in bad faith for having failed to comply with three court orders compelling discovery and having done so knowingly and intentionally, court granted motion for sanctions, including adverse inferences and cost and fees.

Nature of Case: Lease

Electronic Data Involved: Accounting records

AKH Co., Inc. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2014 WL 2760860 (D. Kan. June 18, 2014)

Dec 01 2014

Key Insight: Where plaintiff requested that documents be produced in native format but defendant produced documents in both hard copy format and in a few very large PDF files, court found that defendant had adequately explained why the documents were not produced in their native format (proprietary nature of certain software used by defendant, defendant’s right to withhold privileged information, need to limit production of irrelevant information regarding unrelated policyholders, the added costs of re-producing information already submitted to plaintiff in converted PDF format), and ruled that, absent a need for metadata as to a particular document, it would not require defendant to re-produce the information

Nature of Case: Insurance coverage and settlement of trademark dispute

Electronic Data Involved: ESI

Commonwealth v. Gelfgatt, 11 N.E.3d 605 (Mass. 2014)

Dec 01 2014

Key Insight: Where the facts that would be conveyed by a criminal defendant through his act of decryption of computer files — i.e., his ownership and control of the computers and their contents, knowledge of the act of encryption, and knowledge of the encryption key — are already known to the government and are thus a “foregone conclusion,” compelling the defendant to enter his encryption key does not violate the defendant’s rights under the Fifth Amendment because the defendant is only telling the government what it already knows; accordingly, court reversed trial judge’s denial of government’s motion to compel decryption and remanded the case to the trial court for further proceedings

Nature of Case: Criminal case regarding mortgage fraud scheme

Electronic Data Involved: ESI; encryption key

Enargy Power (Shenzhen) Co. v. Xiaolong Wang, No. 13-11348-DJC, 2014 WL 4687542 (D. Mass. Sep. 17, 2014)

Dec 01 2014

Key Insight: Where defendants maintained hard copy business records that they produced electronically on CD-ROM, but did not make a sufficient showing that documents were produced as they were kept in the usual course of business since defendants provided no details regarding where and how documents were maintained, court ordered defendants to organize and label documents to correspond to the categories of documents requested by plaintiffs; court further ruled that defendants need not ?affirm that their document searches and productions are complete without qualification, or that no additional responsive documents exist,? but directed defendants, once they had completed their search and produced all documents they intended to produce, to confirm their efforts in locating responsive documents were complete and whether they were withholding any documents

Nature of Case: Violations of Computer Fraud & Abuse Act, conversion, misappropriation of trade secrets and breach of fiduciary duty

Electronic Data Involved: Hard copy documents scanned and produced on CD-ROM

Clauss Constr. v. UChicago Argonne, LLC, No. 13 C 5479, 2014 WL 5390665 (N.D. Ill. Oct. 20, 2014)

Dec 01 2014

Key Insight: Where plaintiff discovered numerous boxes of relevant or potentially relevant documents that had not been previously produced, but did not produce them in electronic format with Bates-labeling in accordance with parties’ agreed production protocol and instead provided photographs of the documents and boxes and some incomplete indexes, defendants successfully argued that plaintiff either should have to comply with parties’ agreement and produce material in correct format or nonconforming documents should be excluded; plaintiff chose to have newly discovered documents excluded from evidence; court found that monetary sanctions were appropriate and awarded defendant its attorneys’ fees and expenses incurred in filing the motion and attending hearing

Nature of Case: Breach of contract claims

Electronic Data Involved: Hard copy documents

A & R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., No. 3:07CV929 (WWE), 2014 WL 5859024 (D. Conn. Nov. 10, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted plaintiffs? motion for reconsideration, but adhered to its previous ruling denying plaintiffs? request that defendant merge two separate data compilations from two distinct data sources – one from a non-party and the other from defendant – to enable plaintiffs? experts to have a single ?pristine? data set to use in the case, as plaintiffs were not entitled to receive ESI in their preferred format nor were defendants required to create a document for production; however, because it struck the court that it would be in both parties? interests to have the data plaintiffs sought and for both parties? experts to work from the same data set, the court suggested that the parties cooperate in hiring a neutral third party to conduct the comparison, which would provide plaintiffs, to some extent, the data sought while at the same time prevent an attack on the data?s integrity

Nature of Case: Class action brought by auto body companies alleging that defendants violated the Connecticut Unfair Trade Practices Act

Electronic Data Involved: Estimating data from two sources

EEOC v. SVT, LLC, No. 2:13-CV-245-RLM-PRC, 2014 WL 2177796 (N.D. Ind. May 22, 2014)

Dec 01 2014

Key Insight: Where defendant utilized third party?s hiring program to allow applicants to apply online, etc. and had limited access to the system?s data (i.e., limitations on the format and content of reports from the system), the court found that the data that could be regularly accessed by the defendant per its contract with the third party was accessible and subject to production and that data housed by the third party and not readily available to the defendant was ?not reasonably accessible . . . because of both undue burden and cost? and ordered that if the EEOC wanted the inaccessible data, it would have to pay for it

Nature of Case: Employment litigation

Electronic Data Involved: ESI (Kronos)

Oleksy v. Gen. Elec. Co., No. 6 C 1245, 2014 WL 3820352 (N.D. Ill. Aug. 1, 2014)

Dec 01 2014

Key Insight: Where, at time complaint was filed, defendant should have reasonably foreseen that files created by its accused process would be material to the parties’ claims, yet defendant continued to overwrite its files per its standard practice instead of saving the files either manually or automatically, court denied plaintiff’s request for adverse inference instruction but ordered defendant to reconstitute or recreate three complete sequences of old computer code at its own cost

Nature of Case: Patent infringement

Electronic Data Involved: Computer code

Tag:Motion to Compel