Motion to Compel – Page 46 – Electronic Discovery Law

Davenport v. Charter Comm?cns., LLC, No. 2015 WL 1286372 (E.D. Mo. Mar. 20, 2015)

Dec 01 2015

Key Insight: Court denied Plaintiffs? motion to compel re-production of time records in .xls format where Defendant first produced the records in a searchable PDF format, generally found by courts to be ?reasonably usable,? and where the parties? discovery plan contemplated the possible reproduction of certain information upon a showing of good cause in situations where the data or metadata was not adequately captured, but where the court found that Plaintiffs desire to manipulate the documents with greater ease did not constitute good cause; court stated: ?Such difficulties would have been a good reason for Plaintiffs to specify a particular format in their request for production, but are not sufficient ?good cause? to force Defendant to reformat and produce data which it has already provided.?

Nature of Case: FLSA Collective Action

Electronic Data Involved: Electronic Time Clock Records

Wilder v. Rockdale Cnty., No. 1:13?CV?2715?RWS, 2015 WL 1724596 (N.D. Ga. April 15, 2015)

Dec 01 2015

Key Insight: Where defendants downloaded some, but not all available video within three days of incident and video-recording system programmed by third-party vendor automatically overwrote old video after thirty days, court found that defendants did not destroy evidence in bad faith and plaintiff was not extremely prejudiced and, therefore, not entitled to spoliation sanctions. Court also reviewed the record related to missing documents and said that defendants had diligently searched for the documents and concluded, ?Apparently, Defendants do not have these documents, and there is no evidence of bad faith or spoliation of evidence. Because Defendants are only required to produce what they have, the Court cannot compel Defendants to produce these documents.?

Nature of Case: Wrongful Death

Electronic Data Involved: Surveillance Video; Documents

Banks v. St. Francis Health Ctr., Inc., No. 15-cv-2602-JAR-TJJ, 2015 WL 7451174 (D. Kan. Nov. 23, 2015)

Dec 01 2015

Key Insight: Addressing Plaintiff?s Motion to Compel, court overruled Defendant?s objection to producing ESI in native format with metadata where Defendant failed to indicate in its objection the form of production it intended to use instead and did not support its objection by explaining why it could not or should not be required to produce as requested and, in fact, admitted that it had previously produced material in native format; court denied without prejudice Plaintiff?s motion to compel responses outlining Defendant?s search efforts (sometimes called “discovery on discovery”) where Plaintiff?s counsel failed to confer with Defense counsel prior to bringing the motion, as is required by the District of Kansas? ESI Guidelines

Nature of Case: Title VII: racial discrimination, retaliatory conduct

Electronic Data Involved: ESI

Didier v. Abbott Labs, No. 13-2046-JWL, 2014 WL 219851 (D. Kan. Jan. 21, 2014)

Dec 01 2014

Key Insight: Finding that steps taken by defendants to locate responsive documents and their continued effort to work with plaintiff and supplement their production appeared sufficient, court declined to impose drastic sanctions requested by plaintiff but did allow plaintiff to re-depose particular witness as to emails that were produced after the witness’s deposition since plaintiff may have been prejudiced by her inability to question the witness regarding the content of those emails

Nature of Case: Employment discrimination

Electronic Data Involved: ESI including text messages

Fasteners for Retail, Inc. v. DeJohn, No. 100333, 2014 WL 1669132 (Ohio Ct. App. Apr. 24, 2014)

Dec 01 2014

Key Insight: Trial court abused its discretion in ordering forensic imaging of defendants’ computer hard drives, as record did not demonstrate that documents plaintiff sought were being unlawfully withheld by defendants and not available from plaintiff’s own information or other sources, and in failing to set out an appropriate protocol to govern the forensic imaging process and protect defendants’ confidential information and preserve any private or privileged information

Nature of Case: Patent infringement, false advertising, misappropriation of trade secrets, breach of employment agreements

Electronic Data Involved: Computer hard drives

Chickadaunce v. Minott, No. 1:13-cv-01223-WTL-MJD, 2014 WL 4980547 (S.D. Ind. Oct. 6, 2014)

Dec 01 2014

Key Insight: Considering the totality of circumstances and balancing the highly relevant and probative value of the information sought with the slight burden to defendant of preparing a database of case files (estimated by defendant to be 15-20 hours), and taking into account society’s interest in furthering the truthseeking function in the case, court granted plaintiffs’ motion to compel and ordered defendants to produce database of electronic case files within 14 days

Nature of Case: Class of approximately 4,800 disabled individuals sued officials of Indiana Family & Social Services Administration alleging violations of Americans with Disabilities Act and other claims

Electronic Data Involved: Electronic case files of approximately 200 past and current class members

Bombardier Recreational Prods. Inc. v. Arctic Car, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 10714011 (D. Minn. Dec. 5, 2014)

Dec 01 2014

Key Insight: Addressing a myriad of motions, court declined to compel Defendant?s production of irrelevant ESI hit upon by agreed-upon search terms reasoning that the rules permit and even encourage relevancy screening ?in an effort to avoid large, largely nonresponsive documents dumps mean to obscure and cloak relevant documents? and that Plaintiff failed to establish that Defendant had withheld relevant materials or agreed to the production of all search hits; court declined to compel Defendant?s production of a 30(b)(6)(witness to provide ?discovery on discovery? reasoning that Plaintiff failed to demonstrate that the information sought was ?relevant to – or may lead to the discovery of information relevant to – any claim or defense at issue in the present case? and that the request ?treads dangerously close to encroaching on attorney work product privilege?

Nature of Case: Patent infringement

Electronic Data Involved: ESI search hits, “discovery on discovery”

The Shaw Group Inc. v. Zurich Am. Ins. Co., No. 12-257-JJB-RLB, 2014 WL 4373210 (M.D. La. Sep. 3, 2014)

Dec 01 2014

Key Insight: Where parties? agreed protective order stated that parties would endeavor to agree on search terms to be utilized in the search for responsive ESI, and current discovery dispute centered solely on the reasonableness of the search terms chosen by each party and the willingness of the parties to negotiate reasonable search terms, court rejected defendant?s proposed list of 90 search terms in light of plaintiff?s showing that the broad search would result in undue burden and expense by generating an excess of irrelevant documents, and instead ordered plaintiff to search for responsive documents using plaintiff?s 28 proposed search terms and protocol which the court found reasonable and well-tailored to locate responsive documents; court faulted parties for their lack of diligence in completing discovery within the court?s deadlines, observing: ?In short, both sides chose to do nothing, waiting to see if the other side would blink first. In doing so, they have compromised the deadlines in the court?s scheduling order, the briefing on dispositive motions, and have essentially gambled with the parameters of ESI discovery.?

Nature of Case: Insurance dispute

Bell Inc. v. GE Lighting, LLC, 6-14-CV-00012, 2014 WL 1630754 (W.D. Va. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court ordered partial cost-shifting of third party?s costs in responding to subpoena upon evaluating several factors, including the third party?s (poor) financial condition, but declined to shift all costs where the third party declined the requesting parties? offer to review the documents – through outside counsel – subject to a clawback agreement (resulting in higher costs) and where the court found the third party was an interested party and that the litigation was not of public importance; court noted in its discussion that ?Courts in this district have found that it is untenable for a party to insist on individually reviewing all documents for privilege and responsiveness, rather than producing documents under a protective order with a claw back provision.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

L-3 Commc?ns Corp. v. Jaxon Eng?g & Maintenance, Inc., No. 10?cv?02868?MSK?KMT, 2014 WL 3732943 (D. Colo. July 29, 2014)

Dec 01 2014

Key Insight: Where special master was appointed to review tens of thousands of documents listed on defendants? privilege log and issue a report and order after determining, as to each document, whether the document was subject to a claim of work product, attorney-client privilege, spousal privilege or ?so intensely personal and so utterly irrelevant that they should be withheld from production,? district court painstakingly reviewed special master’s report de novo with respect to specified documents subject to objection by the parties and made final rulings

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI stored on computer hard drives

Tag:Motion to Compel