Motion to Compel – Page 65 – Electronic Discovery Law

Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 WL 940270 (D. Kan. Mar. 20, 2012)

Dec 01 2012

Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)

Nature of Case: Employment discrimination

Electronic Data Involved: Miscellaneous ESI

ADT Secs. Servs. Inc. v. Pinnacle Sec. LLC, No. 10 C 7467, 2012 WL 7170633 (N.D. Ill. May 11, 2012)

Dec 01 2012

Key Insight: Where defendant argued that its failure to issue a specific litigation hold was mitigated by prior imposition of a no-delete policy which would have prevented any loss of evidence, the court determined it needed additional information on the scope of the policy and ordered defendant to provide information to determine if the scope of the policy was sufficiently broad and how it was communicated to employees; where defendant acknowledged that it did not search certain individual computers because all files created were to be saved in the ?My Documents? folder which was saved to a network server, the court noted the lack of assurance that employees followed the default settings and that they did not save ESI in folders outside of ?My Documents? and thus ordered a search of particular employees? computers using Plaintiff?s key word search terms

Electronic Data Involved: ESI

Wynmoor Cmty. Council, Inc. v. QBE Ins. Co., —F.R.D.—, 2012 WL 716480 (S.D. Fla. Mar. 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to allow forensic imaging of plaintiff?s computers for purposes of discovery where plaintiff?s production of ESI was very small, where plaintiff?s CIO admitted he had taken no efforts to retrieve any ESI, and where it was established that ESI may be present on plaintiff?s computers?possibly including electronic copies of hard copy documents which may have been shredded; court?s order called for court-appointed forensic expert to conduct examination and established other protocols to be followed

Nature of Case: Breach of insurance contract

Electronic Data Involved: ESI

Pouncil v. Branch Law Firm, No. 10-1314-JTM-DJW, 2012 WL 777500 (D. Kan. Mar. 7, 2012)

Dec 01 2012

Key Insight: Where evidence indicated that defendant?s responses to discovery were incomplete, court ordered defendant to ?proceed with the forensic search of their computer systems using protocols agreed upon by the parties? but declined to compel defendant to bear the cost of the examination until final costs were known; defendant was also ordered to institute a litigation hold where defendant?s deposition testimony established that none had previously been issued

Nature of Case: Malpractice

Electronic Data Involved: ESI

Anthony v. Atlantic Group, Inc., Nos. 8:09-cv-0283-JMC, 8:09-cv-02942-JMC, 2012 WL 4009490 (D.S.C. Sept. 12, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel ?electronically stored information, electronic mail, and social networking data? related to the issues raised in this case and, noting plaintiffs ?direct access? to the information requested, declined to require defendant to seek the information from the relevant service providers

Nature of Case: Employment litigation

Electronic Data Involved: Email, Social media content

Winchell v. Lopiccolo, —N.Y.S.2d—, 2012 WL 5933033 (N.Y. Sup. Ct. Oct. 19, 2012)

Dec 01 2012

Key Insight: Where Plaintiff alleged brain trauma and impaired cognitive functioning and Defendants therefore sought unfettered access to Plaintiff?s Facebook page ?for the purpose of discovering what it reveals about Plaintiff?s ?ability to portray cognitive function?? (Defendants asserted that even the layout of the page would demonstrate cognitive function), the court denied the motion upon finding the request was overbroad

Nature of Case: Claims related to injuries resulting from auto accident

Electronic Data Involved: Social Network contents (Facebook)

Tucker v. Amer. Int?l Group, Inc., No. 3:09-CV-1499 (CSH), 2012 WL 902930 (D. Conn. Mar. 15, 2012)

Dec 01 2012

Key Insight: Court denied plaintiff?s motion to compel inspection of third party?s electronic records where the subpoenas seeking access was overly broad, where the existence of additional responsive information was speculative, where the information sought was cumulative of information obtained elsewhere, and where conducting the requested search would result in a significant burden to a non-party

Nature of Case: Action to recover damages from former employer’s insurers

Electronic Data Involved: ESI

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

Tag:Motion to Compel