Motion to Compel – Page 48 – Electronic Discovery Law

Freres v. Xyngular Corp., No. 2:13-cv-400-DAK-PMW, 2014 WL 1320273 (D. Utah Mar. 31, 2014)

Dec 01 2014

Key Insight: Court granted motion to compel production of Plaintiff?s cell phone for copying and inspection and rejected Plaintiff?s arguments that the information sought was beyond the scope of discovery, that the inspection should not be allowed because the phone contained personal and/or privileged materials (which the court reasoned the Standard Protective Order would adequately address), and that the inspection was unduly burdensome; court acknowledged Plaintiff?s concern that the phone was her ?only point of contact in the case of an emergency? and ordered Defendant to obtain and pay for an alternate cell phone for Plaintiff?s use while hers was away

Nature of Case: Wrongful termination

Electronic Data Involved: Cellular Phone

West Plains, LLC v. Retzlaff Grain Co., No. 8:13CV47, 2014 WL 2515198 (D. Neb. June 3, 2014)

Dec 01 2014

Key Insight: Where plaintiff produced thousands of documents on disc and in hard copy, and divided some of the electronic documents into files on the disc but otherwise provided no indices to guide defendants to responsive materials, court found plaintiff?s responses insufficient and ordered plaintiff to produce index or other tool to guide defendants to the documents responsive to each individual request for production

Nature of Case: Company sued competitor, and former employees who had resigned to join competitor, for misappropriation of confidential business information, tortious interference with business relationships, and related claims

Electronic Data Involved: ESI produced on disc

Freedman v. Weatherford Int?l Ltd., No. 12 Civ. 2121(LAK)(JCF), 2014 WL 4547039 (S.D.N.Y. Sep. 12, 2014)

Dec 01 2014

Key Insight: Where plaintiffs offered 18 emails from “critical custodians” that were produced not by defendant but by a third party as new evidence to support motion for reconsideration of order denying motion to compel, court noted differences in search terms used in respective searches and opined that requests for discovery regarding a party?s discovery efforts should be ?closely scrutinized in light of the danger of extending the already costly and time consuming discovery process ad infinitum?; rejecting plaintiffs’ motion for reconsideration, court observed: ??[T]he Federal Rules of Civil Procedure do not require perfection.? . . . Weatherford has reviewed ?millions of documents and [produced] hundreds of thousands,? comprising ?nearly 4.4 million pages? in this case. It is unsurprising that some relevant documents may have fallen through the cracks.?

Nature of Case: Putative class action alleging securities fraud

Electronic Data Involved: Email

Baker v. Bayer Healthcare Pharm., Inc., No. 13-cv-00490-THE (KAW), 2014 WL 5513854 (N.D. Cal. Oct. 31, 2014)

Dec 01 2014

Key Insight: Finding that sales call notes that plaintiff sought, as opposed to only those concerning plaintiff’s healthcare provider, were relevant, but agreeing that producing all sales call notes for tens of thousands of healthcare providers was unduly burdensome and disproportionate to the needs of this single-plaintiff case, court sought to strike a balance between plaintiff’s entitlement to information relevant to her claims and need to ease defendant’s burden of production, and ordered production of sales call notes that had already been produced in related multidistrict litigation involving over 1,500 plaintiffs; court noted that production in related MDL was limited to the plaintiffs? specific prescribing physicians but that the volume that production would yield would give plaintiff a substantial cross-section of sales call notes without burdening defendant with production of sales call notes for every physician in every market in which the device was promoted

Nature of Case: Single-plaintiff products liability lawsuit

Electronic Data Involved: Databases containing sales call notes from conversations between defendant’s sales representatives and healthcare providers

E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where former employee filed claim with EEOC alleging sexual harassment and retaliation, and EEOC issued a subpoena to employer staffing agency seeking information to determine how long the staffing agency had required applicants to waive statutorily protected statutes of limitations, court declined to enforce the subpoena, finding that the EEOC’s subpoena exceeded its authority in that the information sought went beyond the issues arising out of former employee?s individual charge; court further determined that the burden imposed on the staffing agency far exceeded the minimal relevance of the evidence sought, given that staffing agency processed 130,000 temporary employee applications during the time period covered by the subpoena, applications were not kept in a central repository or electronically, and compliance would require manual review of each employment application maintained in paper format at each of its ten office locations and would disrupt agency’s day-to-day operations

Nature of Case: Motion for enforcement of administrative subpoena issued to staffing agency relating to investigation of former employee’s claim of sexual harrassment and retaliation

Electronic Data Involved: Versions of employment application form used by staffing agency between January 1, 2012 and May 31, 2014, including all pages of and revisions to each form

Icon-IP Pty Ltd., v. Specialized Bicycle Components, Inc., No. 12-cv-03844-JST (MEJ), 2014 WL 6788182 (N.D. Cal. Dec. 2, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to compel Defendant to produce additional documents relevant to their design infringement claims by searching Defendant?s emails and electronic design documents. Defendant argued that this comprehensive search of electronic design documents would be ?overly burdensome, oppressive, and not reasonably calculated to lead to discovery of admissible evidence,? and conducted a reasonable search responsive to Plaintiffs request, but did not explain why and how the comprehensive search would be burdensome. Defendant complied with a stipulation agreeing to specific email search terms and custodians, subject to objections which Plaintiff did not respond to. The court ordered that Plaintiff was entitled to additional discovery of electronic design documents because Defendant did not meet the burden of showing the request was unduly burdensome. However, since Defendant did comply with the stipulation, further email searches were not needed.

Nature of Case: Patent Litigation

Electronic Data Involved: ESI

Harrington Enters., Inc. v. Safety-Kleen Sys., Inc., No. 13-00167-CV-W-BP, 2014 WL 12611318 (W.D. Mo. July 11, 2014)

Dec 01 2014

Key Insight: Court denied motion to compel searches of current and proposed custodians using additional search terms where Plaintiff failed to establish the relevance of the terms or the likelihood they would lead to admissible evidence and where Defendant had already provided discovery regarding the alleged issue, thus rendering the discovery cumulative and duplicative; court also denied motion to add custodians where Plaintiff again failed to establish relevance and where Defendant had shown that the ESI for the requested custodians was not reasonably accessible because it would require restoration of disaster backup tapes and ?substantial time, effort, and cost? to search

Electronic Data Involved: ESI (additional search terms, custodians)

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

Tag:Motion to Compel