Motion to Compel – Page 61 – Electronic Discovery Law

Jo Ann Howard & Assocs. v. Cassity, No. 4:09CV01252 ERW, 2013 WL 3788804 (E.D. Mo. July 19, 2013)

Dec 01 2013

Key Insight: Alleged inadvertent production found to be waiver of privilege where the court found the production was voluntary (noting that the document had been produced twice and was clearly identified in the production log); found that reasonable precautions were not taken to prevent disclosure (citing the failure to label the document as privileged and the low number of other documents in the production and reasoning that blaming an error by the file room staff did not ?excuse? the failure to supervise production); and found that Defendants failed to take prompt measures to rectify the disclosure (citing the failure to claim privilege when asked for further details regarding the document in the course of discovery and the almost seventeen month delay between the ?first voluntary production? and the assertion of privilege)

Nature of Case: RICO, violations of fiduciary duty, gross negligence

Electronic Data Involved: Narrative summary of events composed by Defendant

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Soffer v. Five Mile Capital Partners, LLC, No. 2:12-cv-01407-JAD-GWF, 2013 WL 4499011 (D. Nev. Aug. 19, 2013)

Dec 01 2013

Key Insight: Court indicated that dispute over whether to compel Defendants to conduct additional searches in an expanded date range turned on Rule 26(b)(2)(C)(iii) and the question of whether the burden outweighed the likely benefit but, citing Plaintiff?s prior offer to more narrowly tailor the search terms to be utilized and to contribute to the reasonable costs of Defendants? review, ordered the parties to meet to attempt to reach agreement on a more focused search and to negotiate a reasonable cost sharing agreement and indicated that the court would consider shifting ?an appropriate share of the costs of production? once a determination of the cost was made

Nature of Case: Interference with a contract and prospective economic advantage, fraud, breach of fiduciary duty

Electronic Data Involved: ESI

Transamerica Life Ins. Co. v. Lambert, No. 4:12-CV-1253 CAS, 2013 WL 4028275 (E.D. Mo. Aug. 7, 2013)

Dec 01 2013

Key Insight: Court granted cross-claim plaintiff’s motion to compel cross-claim defendant to produce computer and cell phone used by decedent by shipping those devices from Jonesboro, Arkansas to St. Louis, Missouri (at cross-claim plaintiff’s expense) for forensic examination because cross-claim defendant’s production of copies of cell phone text messages and a non-forensic copy of the computer hard drive were insufficient to respond to plaintiff’s request for production of the devices themselves, since the copies did not allow for forensic examination of the devices, and because the slight inconvenience to cross-claim defendant in not having access to the cell phone and computer for a period of time was outweighed by the significant additional expense cross-claim plaintiff would incur if she were required to examine the devices in Jonesboro

Nature of Case: Probate matter

Electronic Data Involved: Computer and cell phone used by decedent

Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL 4508128 (E.D. La. Aug. 22, 2013)

Dec 01 2013

Key Insight: Court sustained objections to requests for social media content reasoning that although such content was potentially discoverable, Defendant had not made a sufficient showing that the material sought was ?reasonably calculated to lead to the discovery of admissible evidence,? and went on to reason that: ?Simply placing their mental and physical conditions at issue is not sufficient to allow PPI to rummage through Johnson’s or Croke’s social media sites. Almost every plaintiff places his or her mental or physical condition at issue, and this Court is reticent to create a bright-line rule that such conditions allow defendants unfettered access to a plaintiff’s social networking sites that he or she has limited from public view.?

Electronic Data Involved: Social Network content (e.g. Facebook, MySpace, etc.)

Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387(E.D. Mich. 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion to compel plaintiff to authorize access to her Facebook account where defendant did not have the ?generalized right to rummage at will through information that Plaintiff has limited from public view? absent a threshold showing that the requested information is reasonably calculated to the lead to the discovery of admissible evidence and where defendant failed to make that showing (court noted, for example, that the pictures available for public viewing on plaintiff?s account did not show activity inconsistent with plaintiff?s claims of injury)

Nature of Case: Slip and fall

Electronic Data Involved: Facebook contents

Bourne v. Arruda, No. 10-cv-393-LM, 2012 WL 1570831 (D.N.H. May 3, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion for access to defendants? computers and other electronic storage devices (at defendants? expense) where plaintiff?s allegations of incomplete discovery and spoliation were merely speculative and were insufficient to justify his request

Nature of Case: Defamation

Electronic Data Involved: Computers, electronic storage devices

United States v. NCR Corp., No. 10-C-910, 2012 WL 4955304 (E.D. Wis. Oct. 17, 2012)

Dec 01 2012

Key Insight: Court denied motion to compel production of additional documents in CERCLA action where government had already produced a ?staggering? amount of discovery and indicated that additional discovery obligations would be burdensome and where the information sought would only be of ?limited relevance? to the issues of the case

Nature of Case: CERCLA

Electronic Data Involved: ESI

Roxane Labs. Inc. v. Abbot Labs., No. 2:12-cv-312, 2013 WL 1829569 (S.D. Ohio Apr. 30, 2012)

Dec 01 2012

Key Insight: Where Plaintiff argued that production of the requested ESI would be unduly burdensome because of the lack of a ?centralized electronic document system? which would require it to ask ?hundreds of employees to search their electronic documents,? and would require ?significant effort to review and produce,? and where Plaintiff also argued that a 30(b)(6) deposition would be a less burdensome method of obtaining discovery, the court noted the lack of information provided to establish the burden alleged and reasoned that ?the mere fact that a party does not have a centralized electronic document system? does not establish undue burden and granted defendant?s motion to compel

Nature of Case: Patent litigation seeking declaratory judgment of invalidity and noninfringement

Electronic Data Involved: ESI

FTC v. Johnson, No. 2:10-cv-02203-RLH-GWF, 2012 WL 2138108 (D. Nev. June 12, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced documents as kept in the usual course of business and labeled some documents to correspond to certain requests and where plaintiff included ?a searchable concordance and an index that identifies the document?s source, description, and date range? the court found that the production complied with Rule 34 and denied defendant?s motion to compel plaintiff to ?respond to the requests for production of documents with organized and related responses?

Electronic Data Involved: ESI

Tag:Motion to Compel