Motion to Compel – Page 60 – Electronic Discovery Law

Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-cv-1081, 2013 WL 1196606 (S.D. Ohio)

Dec 01 2013

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that historical data was unavailable because it had been stored on magnetic tapes that could only be accessed with outdated technology that had been disassembled (VAX computer) and that the tapes had degraded and the information could not be retrieved, the court granted Plaintiff?s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

W. Penn. Elec. Employees Pension Fund v. Alter, No. 2:09-cv-04730-CMR, 2013 WL 4803564 (E.D. Pa. June 26, 2013), approved and adopted in substantial part, 2013 WL 4799061 (E.D. Pa. Sep. 6, 2013)

Dec 01 2013

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

Advanced Tactical Ordnance Sys. LLC v. Real Action Paintball, Inc., No. 1:12-CV-296, 2013 WL 682848 (N.D. Ind. Feb. 25, 2013)

Dec 01 2013

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

Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, 2013 WL 1176504 (M.D. Tenn. Mar. 20, 2013)

Dec 01 2013

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

Breathablebaby LLC v. Crown Crafts, Inc., No. 12-cv-94 (PJS/TNL), 2013 WL 3350594 (D. Minn. May 31, 2013)

Dec 01 2013

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

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

Tag:Motion to Compel