Key Insight: Where defendant sought to avoid running the searches proposed by plaintiff based on irrelevance, overbreadth and undue burden, the court found that defendant had failed to meet the burden to show cause for entry of a protective order and granted plaintiffs? motion to compel
Nature of Case: Breach of contract
Electronic Data Involved: Emails
Key Insight: Reasoning that a request for production cannot require a responding party to create documents that are not already in existence, court denied plaintiff’s motion to compel production of comparison sales reports for other U.S. sales districts where there was no dispute that the additional documents requested did not exist and would need to be created by extracting historical data from archive and backup data storage maintained by defendant
Nature of Case: Antitrust claims
Electronic Data Involved: Sales data
Key Insight: ?In light of the availability of source code analyzer tools and the extraordinary burden that a compiler would impose on [Defendant], the court denie[d] [Plaintiff?s] request for a compiler for source code review?; court also declined to compel defendant?s production of printouts of 14 complete files (of source code) and ordered the parties to meet to determine which limited portions of the source code would be produced in hard copy and to arrange for [Plaintiff?s] experts to inspect the complete file ?to determine the limited portions of the source code needed, if necessary.?
Nature of Case: Patent Infringement
Electronic Data Involved: Source code, compiler software
Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege
Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation
Electronic Data Involved: ESI
Key Insight: Applying relevant factors identified in In re Asia Global Crossing Ltd., 322 B.R. 247 (S.D.N.Y. 2005), court concluded that consultant?s use of workplace email did not waive privilege where, although the factors were evenly split, there was no evidence that the employee actually monitored employees? emails and because of the ?importance of the attorney-client privilege?
Nature of Case: Plaintiffs claim defendants colluded to “avoid poaching each other’s employees and to stabilize their compensation packages.”
Electronic Data Involved: Emails
Key Insight: Where Defendant indicated that historical data was unavailable because it had been stored on magnetic tapes that could only be accessed with outdated technology that had been disassembled (VAX computer) and that the tapes had degraded and the information could not be retrieved, the court granted Plaintiff?s motion to compel discovery related to the ?failure to preserve or the destruction? of the at-issue data and ordered Defendant to produce a 30(b)(6) designee and to produce all relevant documents related to the ?preservation, failure to preserve and/or destruction? of the historical data and technology
Nature of Case: Groundwater contamination
Electronic Data Involved: Magnetic tapes, VAX computer
Key Insight: In this Report and Amended Recommended Order, Special Discovery Master agreed with plaintiffs that they should have the opportunity to confirm, though inspection by neutral e-discovery vendor already retained by parties, defense counsel?s representations as to contents of individual defendant?s belatedly-disclosed hard drive, because without the requested examination, there was no way to know if, in fact, hard drive contents were duplicative of data already produced by another party as the individual defendant claimed; Special Master found request was not unreasonable given the centrality of the defendant in events giving rise to the lawsuit, the unsubstantiated nature of defense counsel?s claim that the data was duplicative, that the defendant had provided only limited discovery to plaintiffs, that the defendant, through his counsel, had previously denied possession of any responsive data when the hard drive had been in his home and responsive documents were on his personal computer, much time and money had been expended in the effort to obtain the documents from other sources, and plaintiffs should not be expected to accept without question the claim that the defendant ?simply forgot? he had received company documents prior to his departure; district court subsequently adopted recommendation but modified deadlines and division of costs
Nature of Case: Securities class action
Electronic Data Involved: Material on hard drive belatedly disclosed by individual defendant
Key Insight: Court granted motion to compel and ordered production of a ?complete copy? of Defendant?s database, despite noting that the request appeared ?facially intrusive,? where the information was ?highly relevant? to the claims in the case, where Defendant failed to provide sufficient information regarding the allegedly proprietary contents of the database, and where an attorneys? eyes only designation was sufficient to protect any trade secrets, etc.
Electronic Data Involved: Database
Key Insight: Court declined to compel production of Plaintiffs? Facebook or other social media pages absent a threshold showing that the accounts would contain information within the scope of discovery but concluded that information stored on Plaintiff?s computer ?could lead reasonably to the discovery of admissible evidence? and required that the parties agree to a word search of Plaintiff?s computer by a neutral third party to ?asses whether Plaintiff?s computer contains relevant information?
Nature of Case: Employment discrimination/harassment
Electronic Data Involved: Facebook and social media, personal computer
Key Insight: Calling defendants collection efforts ?incomplete and somewhat haphazard? where defendant provided no instruction to its chosen custodians regarding the types of documents to search for, whether to check with subordinates, or how to search for documents, the court reopened discovery so that production could ?commence in accordance with the parties? joint ESI plan,? and ordered the parties to meet and confer regarding search terms and an amended scheduling order; court considered proper logging of emails and ordered defendant to produce an amended privilege log that listed each privileged email contained in an email string separately
Nature of Case: Patent infringement
Electronic Data Involved: Email, misc. ESI
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