Motion to Compel – Page 59 – Electronic Discovery Law

Tapp v. New York State Urban Dev. Corp., No. 9131N, 2013 WL 3622969 (N.Y. App. Div. Jan. 31, 2013)

Dec 01 2013

Key Insight: Lower court ?correctly determined that plaintiff?s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection? and that ?to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff?s Facebook account?

Nature of Case: Personal Injury

Electronic Data Involved: Facebook

Athome Care, Inc. v. The Evangelical Lutheran Good Samaritan Soc?y, No. 1:12-cv-053-BLW, 2013 WL 1819691 (D. Idaho Apr. 30, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion to compel production of metadata and, noting that Defendant ?would have produced the requested metadata but for an inadvertent change to the creation date on certain documents,? indicated that the real question was ?how to resolve that mistake, which essentially requires the court to apply the Rule 26(b)(2)(C) balancing test;? court considered fact that Defendant ?created the problem? although not in bad faith (?accidents happen?) and further found that the burden of production was not ?all that great? and ordered the production of the requested metadata

Nature of Case: Breach of contract/licensing agreement

Electronic Data Involved: metadata

Sophia & Chloe, Inc. v. Brighton Collectibles, Inc., No. 12cv2472-AJB(KSC), 2013 WL 5212013 (S.D. Cal. Sept. 13, 2013)

Dec 01 2013

Key Insight: Court denied Plaintiff?s request for forensic examinations of certain of Defendant?s computers, despite Defendant?s failure to produce internal communications regarding the allegedly infringing jewelry designs where, despite acknowledging Plaintiff?s suspicions, there was no concrete evidence of ?concealment, destruction of evidence, or failure to preserve documents and information? and where Plaintiff was able to explore its suspicions through other ?written and oral discovery tools?

Nature of Case: Copyright and Trademark infringement and unfair competition

Electronic Data Involved: Email, ESI

Mayor of Baltimore v. Unisys Corp., No. JKB 12-614, 2013 WL 4833841 (D. Md. Sep. 10, 2013)

Dec 01 2013

Key Insight: Court denied city’s motion for spoliation sanctions, without prejudice, in light of the evidence offered by Unisys that an unadulterated copy of the pre-litigation version of the software still existed; court ordered parties to meet and confer in person to address the issues the city had encountered with the software and reconstructng the testing environment, attempt to resolve defendant’s work product and attorney client privilege claims, and prepare a joint report to the court summarizing the meet and confer

Nature of Case: Breach of contract, breach of express warranties, and intentional misrepresentation claims relating to the development of a tax software system

Electronic Data Involved: Pre-litigation version of the tax software, interim software files, source code

FDIC v. Giannoulias, No. 12 C 1665, 2013 WL 5762397 (N.D. Ill. Oct. 23, 2013)

Dec 01 2013

Key Insight: Where defendants propounded 242 requests for documents, trial court declined to require FDIC to review thousands of documents ?to weed out a presumably small subset of irrelevant materials,? or to organize its Phase II production according to defendants? numerous discovery requests; court granted in part and denied in part the parties? respective motions concerning search terms to be used to identify responsive material, and ruled that FDIC would bear the costs of production as they arose subject to the possibility that the court may later require contribution from the defendants; court further directed FDIC to submit to the court a revised proposed ESI protocol

Nature of Case: Receiver sued former directors and officers of bank to recover approximately $114 million in losses bank suffered on 20 commercial real estate loans

Electronic Data Involved: ESI, including email

RPM Pizza LLC v. Argonaut Great Cent. Ins. Co., No. 10-684-BAJ-SCR, 2013 WL 6054551 (M.D. La. Nov. 15, 2013)

Dec 01 2013

Key Insight: Court ordered defendant to provide ESI in the format requested, reasoning that defendant waived its objection by not timely asserting it, and also rejected the argument that the plaintiff had not shown why it was necessary for defendant to produce in the requested form where, pursuant to Fed. R. Civ. P. 24(b)(2)(E), a requesting party is not required to make such a justification

Electronic Data Involved: ESI

Fawcett v. Altieri, 960 N.Y.S.2d 592 (N.Y. Sup. Ct. 2013)

Dec 01 2013

Key Insight: Court acknowledged the discoverability of social media content but reasoned that ?[i]n order to obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand,? and thus denied defendant’s motion to compel

Nature of Case: Personal injury

Electronic Data Involved: Social network content (Facebook, MySpace, Friendster, Flickr, etc.)

Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-Orl-28TBS, 2013 WL 5781274 (M.D. Fla. Oct. 25, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought to inspect Defendants? computers and devices based on discrepancies discovered between metadata produced by Defendants and metadata extracted by Plaintiff?s expert, court denied the motion upon the explanation that system metadata and application metadata are not always the same and where Plaintiff failed to adequately explain why the discrepancies were cause for concern; court undertook extended discussion of format of production issues related to production ?in the ordinary course of business? and found that Defendants? production of native files (both email and other ESI) with an accompanying spreadsheet providing additional information related to where the documents were kept and how they were organized was sufficient, but, as to ?converted files and non-ESI documents,? ordered a production log identifying to which request each was responsive;? court ordered Plaintiff to produce a categorical privilege log

Nature of Case: Breach of contract, conversion

Electronic Data Involved: ESI, email, hard copy

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

Cotton v. Costco Wholesale Corp., No. 12-2731-JW, 2013 WL 3819974 (D. Kan. July 24, 2013)

Dec 01 2013

Key Insight: Addressing Plaintiff?s motion to compel, court declined to compel Defendant to search the email accounts of four Costco employees and to produce any messages containing any of sixty-four search terms where many of the terms were not ?racially charged? and some were duplicative and where, save two of the terms, Plaintiff had not alleged that the terms were ever used by any of Costco?s employees; court denied motion to compel production of text messages sent from certain of Costco?s employees? personal cell phones where the court reasoned that Costco had not issued the phones to the employees for a work purpose and did not have ?possession, custody or control? of the text messages

Nature of Case: Employment discrimination based on race

Electronic Data Involved: Emails, text messages on employees’ personal cell phones

Tag:Motion to Compel