Motion to Compel – Page 59 – Electronic Discovery Law

Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sep. 23, 2013)

Dec 01 2013

Key Insight: Court sustained District’s objection that it did not have duty to produce documents from persons no longer associated with the District who were not parties to the litigation, as plaintiff failed to establish that District had the necessary control over requested documents or that District had legal right to obtain such documents on demand from former District board members, staff or employees; court further denied motion to compel forensic mirror imaging of computers and other electronic devices personally owned by current and former District board members, employees and staff, as District already produced forensic mirror images of two District computers, District lacked possession or control of personally-owned computers, there was no showing that any personally-owned computers of board members, employees and staff were used by those persons for District business, and court had significant concerns about intrusiveness of request and privacy rights of individuals to be affected

Nature of Case: Dispute over water rights

Electronic Data Involved: ESI

A.J. Amer Agency, Inc. v. Astonish Results, LLC, No. 12-351S, 2013 WL 9663951 (D.R.I. Feb. 25, 2013)

Dec 01 2013

Key Insight: Observing that the meet and confer requirement is not an empty formality, court ordered parties to engage in a substantive good faith conferral and to follow five directives: 1) plaintiff?s requests for material in electronic format should be based on what it has already, what it needs for this case, as well as what is reasonably accessible, mindful of the cost-shifting provisions in Rule 26(b)(2)(B); 2) parties should consider what approach would be least costly and burdensome to defendant for production of comparable websites with similar graphics; 3) only sales training materials actually reviewed by the sales team that presented to plaintiff were discoverable; 4) plaintiff should explore what material is already accessible to it using a password that it already has before exploring with defendant what needs to be produced with respect to particular software; 5) once the scope of appropriate discovery is clear, defendant should supplement its responses to specify whether documents exist or not

Nature of Case: Insurance agencies alleged claims for breach of contract, fraud in the inducement, breach of fiduciary duty and breach of obligation of good faith and fair dealing arising from a marketing agreement between defendant to supply websites, digital marketing, training and consulting services

Electronic Data Involved: ESI; website templates, sales training materials

Ubiquiti Networks, Inc. v. Kozumi USA Corp., No. 12-cv-2582 CW (JSC), 2013 WL 1767960 (N.D. Cal. Apr. 15, 2013)

Dec 01 2013

Key Insight: Court found Plaintiff had failed to meet its burden of demonstrating that Kozumi had control over non-party consultant?s emails absent any evidence that defendants could legally compel the non-party to produce the requested documents

Electronic Data Involved: Emails

Safety Today, Inc. v. Roy, Nos. 2:12-cv-510, 2:12-cv-929, 2013 WL 1282384 (S.D. Ohio Mar. 27, 2013)

Dec 01 2013

Key Insight: Court granted motion to compel inspection and imaging of certain of defendant?s computers/servers/devices in case involving accusations of misappropriation of confidential information by plaintiff?s former employees for the benefit of defendant but also granted defendant a protective order limiting disclosure for ?attorneys? eyes only?

Nature of Case: Missapropriation of confidential information

Electronic Data Involved: ESI

Higgins v. Koch Dev. Corp., No. 3:11-cv-81-RLY-WGH, 2013 WL 3366278 (S.D. Ind. July 5, 2013)

Dec 01 2013

Key Insight: Upon Defendant?s motion to compel production of Plaintiffs? Facebook information/content, the court rejected Plaintiffs? claims that the request violated their right to privacy and the privacy rights of their Facebook ?friends? who had posted on their walls or tagged them in photographs, and ordered the plaintiffs to produce material concerning their claimed injuries and their effects

Nature of Case: Personal Injury

Electronic Data Involved: Facebook

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

Thornton v. Morgan Stanley Smith Barney, LLC, No. 12-CV-298-JED-FHM, 2013 WL 1890706 (N.D. Okla. May 3, 2013)

Dec 01 2013

Key Insight: Where defendant sought to shift costs based on the expected expense of reviewing and producing the emails which was estimated to be more than $500,000, the court acknowledged that cost could be a legitimate basis for cost shifting under Rule 26(b)(2)(C), but found that the burden of the requested discovery did not outweigh its likely benefit and was not disproportionate to the case and also noted that the defendant had not established that ?a particular level of review is necessary in this case or that a ?claw back? agreement or [FRE] 502 order would not reduce or eliminate the estimated costs?

Electronic Data Involved: Email

In re Christus Health S.E. Texas, 399 S.W.3d 343 (Tex. Ct. App. 2013)

Dec 01 2013

Key Insight: Denial of motion to compel documents reflecting deceased patient?s children?s purchases and calls on the day the patient underwent his at-issue procedure was no abuse of discretion where the request for production was not sufficiently limited in time and was therefore overly broad; request for all posting to social media regarding the patient or his death was also not limited in time and thus ?overly broad on its face? and trial court did not abuse discretion in denying the motion to compel

Nature of Case: Health care liability

Electronic Data Involved: Documents reflecting purchases and calls on a particular day; Facebook/social media postings

Home Gambling Network, Inc. v. Piche, No. 2:05-cv-00610-DAE-VCF, 2013 WL 5491952 (D. Nev. Sep. 30, 2013)

Dec 01 2013

Key Insight: District court adopted magistrate judge?s report and recommendation that plaintiffs? motion for terminating sanctions, based in part on defendants? botched production of database, be denied in light of additional evidence (consisting of supplemental report by defense expert stating that database was not corrupt but merely ?offline,? expert testimony and in-court demonstration of operation of database, and information regarding a prior database crash) presented by the parties after the district court vacated different magistrate judge’s report and recommendation that plaintiffs? motion for terminating sanctions be granted, that defendants? answer be stricken and that a default judgment be entered against defendants; in light of additional evidence, magistrate judge found that (1) defendants did produce a mirror image of the database as ordered by the court and there was no basis for sanctions, and (2) something done to plaintiffs’ copy of the database after it was provided to plaintiffs caused the error message

Nature of Case: Patent infringement and various state-law claims

Electronic Data Involved: ESI, database

BNP Paribas Mortg. Corp. v. Bank of Amer., N.A., Nos. 09 Civ. 9783(RWS), 09 Civ. 9784(RWS), 2013 WL 2322678 (S.D.N.Y. May 21, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought the return of inadvertently produced privileged documents pursuant to the parties? Fed. R. Evid. 502(d) order (which required the production to be inadvertent to fall within the protective order), the court considered the Lois Sportswear factors and determined that Defendant used reasonable precautions to prevent disclosure (including training contract attorneys to identify privilege and employing a quality control team) and made prompt efforts to rectify their error and ultimately concluded privilege was not waived (court noted that waiver was also not established pursuant to Fed. R. Evid. 502(b))

Electronic Data Involved: Privileged ESI

Tag:Motion to Compel