Motion to Compel – Page 62 – Electronic Discovery Law

United States v. Jarman, No. 11-31217, 2012 WL 2700403 (5th Cir. July 9, 2012)

Dec 01 2012

Key Insight: Circuit court affirmed district court?s granting of defendant?s motion to compel production of a mirror image of a hard drive containing child pornography evidence where defendant?s expert presented unrebutted evidence that she could not conduct her investigation at a government facility because of ?time limitations and restrictions? and thus the circuit court could not conclude that the district court?s determination of ?no ?amply opportunity?? to investigate was clear error; court clarified, however, that it rejected the notion that inconvenience equated to a failure on the part of the government to make the child pornography evidence reasonably available and clarified that when such evidence is made available for inspection at a government facility, ?that is reasonable availability? such that the only issue to be resolved is whether the conditions imposed do not provide ?ample opportunity? for examination of the material

Nature of Case: child pornography; Adam Walsh Act

Electronic Data Involved: Child pornography evidence on hard drive

Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950(LBS)(JCF), 2012 Wl 3964742 (S.D.N.Y. Sept. 10, 2012)

Dec 01 2012

Key Insight: Court addressed in depth a myriad of important discovery issues (e.g. ?phasing, sampling, and proportionality?); as to the question of reasonable accessibility, court clarified that a showing of undue burden alone is insufficient to establish inaccessibility and that the alleged burden must be ?associated with some technological feature which inhibits accessibility? and, noting that defendant?s databases were not inaccessible because of such a feature, found that rule 26(b)(2)(B) presented ?no barrier? to discovery of the at-issue databases; turning to the question of proportionality pursuant to Rule 26(b)(2)(C), court focused on section (iii) and, after discussing options to lessen Defendant?s burden, including sampling or a ?document dump,? found that most ESI was subject to production for reasons including the importance of the information to the case, the high financial stakes and Defendant?s ?ample resources,? the importance of the issues being litigated, and Defendant?s exaggeration of the burden and the inadequacy of proposed alternatives

Nature of Case: Putative class action asserting gender discrimination by employer

Electronic Data Involved: Database content

Commercial Law Corp., P.C., v. Fed. Deposit Ins. Corp., NO. 10-13275, 2012 WL 137835 (E.D. Mich. Jan. 18, 2012)

Dec 01 2012

Key Insight: Finding metadata related to documents at issue was relevant to the action and that a forensic search of the computers used to generate the documents was ?an appropriate method to locate and extract that information,? but recognizing that at least one of the computers belonged to an attorney, court fashioned a protocol that allowed for forensic examination of the computers while simultaneously protecting potentially privileged information thereon

Electronic Data Involved: Metadata

Barnes v. District of Columbia, —F. Supp. 2d —, 2012 WL 4101943 (D.D.C. Sept. 19, 2012)

Dec 01 2012

Key Insight: Where plaintiffs discovered, late in the discovery time period, that defendant?s database production was incomplete but defendant claimed plaintiffs were merely using the wrong query?a query that defendant had not yet produced?the court ordered that defendant produce the relevant query and left open plaintiffs? option to re-file its motion to compel production of additional data if, upon conducting its analysis with the proper query, it nonetheless determined (and could successfully show) that relevant data was missing

Nature of Case: Civil rights claims related to overdetention and strip searching of inmates

Electronic Data Involved: Database content, relevant database query

In re Porsche Cars N. Am., Inc., No. 2:11-md-2233, 2012 WL 4361430 (S.D. Ohio Sept. 25, 2012)

Dec 01 2012

Key Insight: Court addressed a number of discovery issues related to Plaintiffs? motion to compel production and, among other things: 1) ordered production of the parameters of Defendants? searches where evidence indicated the possibility that Defendants made unilateral decisions to limit their search/production, where the parties disputed the meaning of certain search terms, and where the dearth of emails produced ?weighed in favor? of disclosing the search efforts; and 2) ordered defense counsel to certify that they had completed a reasonable inquiry and provided examples of the sort of information that should be included in such a certification

Nature of Case: Product Liability

Electronic Data Involved: ESI; search parameters; certification of reasonable inquiry

Reid v. Ingerman Smith, LLP, No. CV 2012-0307(ILG)(MDG), 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012)

Dec 01 2012

Key Insight: Finding that Plaintiffs? social media content could be relevant to her claims, court ordered photos, communications and posts since January 2008 be produced to Plaintiff?s counsel for review and that relevant portions be produced in accordance with the court?s specific instructions (e.g., photos posted by third parties may be subject to production if relevant, posts and communications by third parties are relevant to the extent they contain observations of the plaintiff, etc.)

Nature of Case: Sexual harassment

Electronic Data Involved: Social media (e.g., Facebook)

FDIC v. Appleton, No. CV-11-476-JAK (PLAx), 2014 WL 10245383 (C.D. Cal. Nov. 29, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced Relativity database with some 700,000 documents culled from its main server using search terms, and defendants complained there was no apparent logic to database and they could not tell what documents were responsive to what requests, court sided with defendants and ordered plaintiff to create files in Relativity into which it would place documents responsive to each particular request

Nature of Case: Receiver brought action against former officers and directors of failed bank

Electronic Data Involved: ESI

Annex Books, Inc. v. City if Indianapolis, No. 1:03-cv-SEB-TAB, 2012 WL 892170 (S.D. Ind. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where plaintiff was unable to produce requested ?bookkeeping data? in a manner that was usable by defendants despite significant efforts to do so (including retaining two computer forensic services, spending over $9500 on 30 hour of work, and purchasing QuickBooks Pro in an attempt to export the relevant data), the court found that plaintiff had demonstrated that the data was not reasonably accessible but also found that defendant had demonstrated good cause for seeking the information and ordered defendant to bear the costs of additional efforts (noting that it was ?unreasonable? for defendant to insist on production in QuickBooks format when incompatibility had been established)

Electronic Data Involved: ESI

Tracy v. NVR, Inc., No. 04-CV-6541L, 2012 WL 1067889 (W.D.N.Y. Mar. 26, 2012)

Dec 01 2012

Key Insight: Where plaintiffs sought to compel production of defendant?s litigation hold and a list of its recipients, court identified the underlying question as whether defendant?s duty to preserve extended to all potential opt-in plaintiffs and found that plaintiffs? significant delay in moving for conditional certification and the indirect nature of the evidence sought distinguished the case from Pippins v. KPMG and that plaintiffs failed to make the necessary preliminary showing of spoliation (which would justify production of the litigation hold notice) because they did not establish ?that documents that should have been preserved? were lost or destroyed; court granted defendant?s motion for sanctions for opt-in plaintiff?s spoliation of hard copy evidence (originals of a calendar indicating her daily activities, two disparate copies of which had been produced) and ordered that she be precluded from testifying as to her daily work activities during a three year period

Nature of Case: FLSA Class action

Electronic Data Involved: litigation hold notice, hard copy calendar

Kregg v Maldonado, —N.Y.S.2d—, 2012 WL 4469935 (N.Y. App. Div. Sept. 28, 2012)

Dec 01 2012

Key Insight: Where lower court granted defendants? motion to compel the ?entire contents? of plaintiff?s social media accounts, appellate court found the ruling was in error where there was no contention that the contents contradicted plaintiff?s claims and where the appellate court determined the ?proper means? to obtain disclosure of relevant information was a ?narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident?

Nature of Case: Claims related to injuries from motorcycle accident

Electronic Data Involved: Social media accounts

Tag:Motion to Compel