Motion to Compel – Page 53 – Electronic Discovery Law

Dixon v. Experian Info. Solutions, Inc., No. 2:13-CV-227-PPS-PRC, 2014 WL 2881589 (N.D. Ind. June 25, 2014)

Dec 01 2014

Key Insight: Where Plaintiff requested production of ESI in native format and defendant failed to object (thus waiving any objection) but produced the requested data as scanned .pdfs and argued that the native format would contain the same information but would be more difficult to understand (because of shortcut codes, etc.), the court reasoned that plaintiff nevertheless requested native format to no objection and ordered that the native format be produced

Nature of Case: Fair Credit Reporting Act

Electronic Data Involved: ESI, database

U.S. v. Capitol Supply, Inc., No. 13-mc-0373 (BAH), 2014 WL 1046006 (D.D.C. Mar. 19, 2014)

Dec 01 2014

Key Insight: Where government had requested production in specific electronic formats (Database, Access or Excel) but company produced materials in PDF format that lacked requested detail and was not searchable across multiple documents, court found production insufficient and noted that the fact that company’s databases lacked certain functionality did not relieve company from responding to subpoenas with responsive information in usable, searchable format and directed company to produce responsive information “in a format that is reasonably usable, which includes searchable, just as its databases are presumably designed to respond to search queries”

Nature of Case: Investigation by Office of the Inspector General re whether company violated the False Claims Act; government petitioned for summary enforcement of OIG supboenas to Capitol Supply, Inc.

Electronic Data Involved: Sales data, country-of-origin information

Gloucester Twp. Hous. Auth. V. Franklin Square Assocs., No. 12-0953 (RMB/AMD), 2014 WL 3974168 (D.N.J. Aug. 12, 2014)

Dec 01 2014

Key Insight: Court evaluated five factors to determine that defendant’s inadvertent disclosure waived the attorney-client privilege, where defendant did not describe the precautions taken, if any, to prevent the disclosure of privileged information, but instead relied on the purportedly voluminous nature of the production, the disputed letters set forth communications between attorney and client concerning clearly privileged, substantive information relating to the litigation, the letters were produced in the litigation on two separate occasions, and defense counsel waited over three months after the letters’ production before attempting to rectify the disclosures and only discovered the inadvertent disclosure while preparing for a deposition

Nature of Case: Breach of contract

Electronic Data Involved: Privileged letters

Executive Mgmt. Servs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2014 WL 5529895 (S.D. Ind. Nov. 3, 2014)

Dec 01 2014

Key Insight: Granting in part plaintiff’s motion to compel, court rejected defendant’s assertion of irrelevance and its conclusory assertions of burdensomeness, finding that defendant had failed to “show with specificity” that plaintiff’s requests were overly burdensome and noting that defendant’s contentions would have more force if defendant had provided an estimate of the cost or hours involved in searching, compiling, and producing the requested information; addressing the discovery of ESI ?more directly,? court ordered defendant to file a disclosure stating the names of all custodians whose ESI was searched, the scope of the ESI searched, date ranges searched for each custodian and specific search terms used, and also provide such information for any additional custodians whose ESI would be searched in light the withdrawal of defendant?s objections; plaintiff was then required, within seven days, to propose a list of additional custodians and scope of ESI, date ranges and specific search terms for such custodians, following which the parties should endeavor to reach agreement regarding the scope of additional e-discovery

Nature of Case: Claims for breach of implied duty of good faith and fair dealing and breach of fiduciary duty

Electronic Data Involved: ESI

Warren Indus., Inc. v. PMG Ind. Corp., No. 13-CV-13026, 2014 WL 5705011 (E.D. Mich. Nov. 5, 2014)

Dec 01 2014

Key Insight: Court rejected defendants’ argument that they did not have access to the email of defendants? Chairman of the Board because the email was kept on a server in Germany that defendants did not own or control, and ruled that, although defendants’ IT manager may not be able to access the Chairman’s email from his Indiana location, the Chairman, as Chairman of the Board of defendant companies, “indeed has possession, custody, and control over his own e-mail communications, regardless of where the server containing these e-mails [was] located; court granted plaintiff’s motion to compel and awarded plaintiff its attorney’s fees and costs associated with the motion

Nature of Case: Breach of contract

Electronic Data Involved: Email stored on server in Germany

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

Tag:Motion to Compel