Motion to Compel – Page 49 – Electronic Discovery Law

Castillon v. Corrections Corp. of Am., No. 1:12-cv-005590EJL, 2014 WL 517505 (D. Idaho Feb. 7, 2014)

Dec 01 2014

Key Insight: Where defendant produced data from timekeeping system in searchable .PDF format and provided attestation from the vice president of technology and chief information officer that that .PDF was the ?only, built-in, reasonably accessible data format? and that producing in the requested format would require Defendant to undertake the ?lengthy and daunting? task of writing a script and where Plaintiffs did not specify the format of production in their request, the court declined to compel re-production of the at-issue data, but noted that if Plaintiffs were willing to pay for the expense of writing a script, ?they may approach Defendant with such a request.?

Nature of Case: Prisoners’ civil rights

Electronic Data Involved: Data from timekeeping system

Smith v. Hillshire Brands, No. 13-2605-CM, 2014 WL 2804188 (D. Kan. June 20, 2014)

Dec 01 2014

Key Insight: Court ordered plaintiff to respond to request for social networking documents that directly referenced or mentioned defendant or the matters raised in plaintiff?s complaint; court found request for production of complete copies of plaintiff?s social networking accounts to be overly broad and indicated its intention to ?follow what appears to be the intermediate course? i.e., allowing defendant ?to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state? and ordered plaintiff to produce all such documents

Nature of Case: Violations of Title VII, Family Medical Leave Act

Electronic Data Involved: Contents of social networking accounts (Facebook, MySpace, Twitter)

Green v. Monarch Recovery Mgmt., Inc., No. 1:13-cv-00418-SEB-MJD, 2014 WL 1631825 (S.D. Ind. Apr. 24, 2014)

Dec 01 2014

Key Insight: Where defendant produced PDF version of requested spreadsheet which was over 1,000 pages long when printed with only 50 pages that were not redacted, court ruled that spreadsheet must be produced in its native Excel format, explaining: 1) “One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version, so merely a PDF imprint of the surface information is not sufficient,” 2) the ability to search the spreadsheet is essential to its usefulness, and 3) due to its structure, a printed or PDF version of a large Excel spreadsheet is “often useless” from an evidentiary standpoint

Nature of Case: Fair Debt Collection Practices Act claims

Electronic Data Involved: Excel spreadsheet

Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 4065084 (E.D.N.Y. Aug. 15, 2014), affirmed, Dover v. British Airways, PLC (UK), No. CV 2012-5567 (RJD)(MDG), 2014 WL 5090021 (E.D.N.Y. Oct. 9, 2014)

Dec 01 2014

Key Insight: Where parties entered into a stipulated protective order approved by the court that contained a provision concerning inadvertent disclosures, and plaintiffs inadvertently produced the protected information on the spreadsheets twice and conceded they were “careless,” court did not find plaintiffs’ conduct to be so “completely reckless” as to warrant a finding of waiver given the totality of the circumstances and particularly the nature of the production, plaintiffs’ prompt request for return of the protected information, and the overriding issues of fairness

Nature of Case: Class action alleging that defendant British Airways violated its frequent flyer program contract by imposing unlawful fuel surcharges on rewards flights

Electronic Data Involved: Spreadsheets prepared by non-testifying, consulting experts

In re Autohop Litig., No. 12-CV-4155 (LTS)(KNF), 2014 WL 5591047 (S.D.N.Y. Nov. 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part defendant’s motion to compel, agreeing with plaintiff that particular document request was overly broad, unduly burdensome, and incomprehensively vague, and concluding that enormous burden and expense that would incurred by plaintiff to access and process the requested data outweighed any benefit defendant might gain; court further noted that the request violated agreement reflected in parties’ Joint Electronic Discovery Submission that they would not be required to search for “other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business”

Nature of Case: Declaratory action with counterclaims for copyright violations, breach of contract and fraud

Electronic Data Involved: Internal communications, viewership tracking data

Palma v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346 (M.D. Fla. 2014)

Dec 01 2014

Key Insight: Observing that, generally, social media content is neither privileged nor protected by any right of privacy, nevertheless, a defendant does not have a generalized right to rummage at will through information that plaintiff has limited from public view, court denied defendant?s motion to compel, questioning the relevance of the material sought and finding that ?the burden of requiring all of the opt-in Plaintiffs to review all of their postings on potentially multiple social media sites over a period of four years and determine which posts relate to their job, hours worked, or this case, would be an ?extremely onerous and time-consuming task’?

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Posts to social media accounts and private messages sent from social media sites

Lee v. Chicago Youth Ctrs., 69 F. Supp. 3d 885 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Reasoning that ?[h]aving contented themselves to file a response to the motion to compel that was conclusory and factually and legally unsupported, the defendants must live with the consequences of that decision,? the court found privilege was waived as to two allegedly inadvertently produced emails; court?s analysis also criticized Defendants? attempts to rectify the inadvertent production where, upon being notified of possible inadvertent production, they relied upon their vendor?the same vendor responsible for the inadvertent production in the first place?to search for privileged information which the vendor subsequently missed and also criticized defense counsels? failure to undertake a review of the information themselves: ?There is a good deal of merit to the plaintiff?s contention that defendants? four lawyers, who are members of a firm whose ?website boasts a roster of ?nearly 800 attorneys,? having ?delegated document review to an unidentified outside vendor (particularly after having been specifically advised of a potential problem with the production)? simply cannot be heard to argue that they took ?the kind of prompt reasonable steps to rectify any error in production which should allow them now to assert inadvertence and avoid a finding of waiver.??

Electronic Data Involved: Emails

Virco Mfg. Corp. v. Hertz Furniture Sys., No. CV 13-2205 JAK(JCx), 2014 WL 12591482 (C.D. Cal. Fan. 21, 2014)

Dec 01 2014

Key Insight: The court granted Defendant?s motion to compel production of email attachments, noting that ?by failing to produce email attachments, plaintiff has effectively redacted, based upon relevance, portions of documents it otherwise apparently views to be discoverable/relevant/responsive to defendants? discovery requests.? The court further noted that Plaintiff ?offered no evidence that it would suffer any undue burden from producing such electronic data.?

Electronic Data Involved: Email

Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950(AT)(JCF), 2014 WL 716521 (S.D.N.Y. Feb. 18, 2014)

Dec 01 2014

Key Insight: Court denied a motion to compel defendants to produce all documents (including those determined to be not responsive) identified by ?a computerized search tool that utilized a series of search terms agreed to by the parties? reasoning that the parties did not agree to such production, that the agreed upon protocol did not ?override the discovery demands and responses? (including defendants’ objection to the scope of certain requests) and that it was ?too late in the day for the plaintiffs to contest the scope defined by the defendants? objections, which were served in January 2011?

Nature of Case: Class action employment discrimination

Electronic Data Involved: All ESI identified by search terms

Ogden v. All-State Career School, No. 2:13cv406, 2014 WL 1646934 (W.D. Pa. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court observed that ordering plaintiff to permit access to or produce complete copies of his social networking accounts would permit defendant to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable, and stated: ?Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home”; court ruled that defendant was only entitled to limited discovery of plaintiff’s communications, and set out particular steps that plaintiff must take to comply with defendant?s requests

Nature of Case: Hostile work environment and disparate treatment based on reverse gender discrimination and retaliation claims

Electronic Data Involved: Electronic communications made or affirmatively acknowledged by plaintiff on any social networking website (e.g., Twitter, Facebook, MySpace) during the period of alleged harassment

Tag:Motion to Compel