Motion to Compel – Page 76 – Electronic Discovery Law

State of California ex rel Fowler v. Caremark RX, LLC, 2010 WL 3991298 (Cal. Ct. App. Oct. 13, 2010):

Dec 01 2010

Key Insight: Where defendants resisted production of electronically stored information and sought to shift the costs of such production to plaintiff by presenting affidavits and expert testimony regarding the expected cost of production which, in large part, was the result of defendants? lack of a data retrieval system for archived information and its failure to suspend archiving documents despite the commencement of related litigation in 2004, and where it was revealed that the expert testimony presented lacked sufficient foundation, the court held that defendants had acted in bad faith and could no longer be trusted and awarded plaintiffs? fees and costs in the amount of $42,978.43; affirmed on appeal

Nature of Case: Violation of False Claims Act

Electronic Data Involved: Archived ESI

Rhea v. Washington Dep?t of Corr., 2010 WL 5395009 (W.D. Wash. Dec. 27, 2010)

Dec 01 2010

Key Insight: Court found that defendant had failed to ask all employees with potentially relevant documents to search for and produce them, that some employees who were asked to search had not complied, and that employees who had complied failed to search for documents in all possible locations and granted plaintiff?s motion to compel additional searching and production; court granted motion to compel defendants to provide a complete answer to an interrogatory seeking detailed information on steps taken to locate responsive materials and ordered defendant to ?certify that all employees with potentially responsive documents searched all locations where such documents are typically stored in paper or electronic format?

Nature of Case: Claims that defendant refused to provide necessary medical care or accommodate plaintiff’s disability

Electronic Data Involved: ESI, emails

Mack v. HG Gregg, Inc., 2010 WL 342545 (S.D. Ind. Jan. 29, 2010)

Dec 01 2010

Key Insight: Where plaintiff moved to compel re-production of electronic spreadsheet in its ?original format? i.e. without a lock that prevented the manipulation of data, the court rejected defendants? arguments that plaintiffs request be denied because 1) the original format was protected work product, 2) the parties never agreed to a format of production, and 3) re-production would be unduly burdensome and granted plaintiffs? motion to compel

Nature of Case: Breach of contract

Electronic Data Involved: Spreadsheet

Bellinger v. Astrue, 2010 WL 1270003 (E.D.N.Y. Apr. 1, 2010)

Dec 01 2010

Key Insight: In an opinion addressing a number of discovery issues, the court declined to compel production of email in native format where defendant provided a ?reasonable explanation? for why it chose to produce in hard copy, namely, because ?they could more easily be reviewed for responsiveness and privilege?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Aponte-Navedo v. Nalcom Chem. Co., 268 F.R.D. 31 (D.P.R. 2010)

Dec 01 2010

Key Insight: Upon plaintiff?s first motion to compel, the court found that while information regarding defendant?s information technology department and the hardware and software used by defendant is discoverable, plaintiff?s requests were overly broad and the court could not compel responses to the interrogatories as drafted but ordered defendants to identify the computer program or software used to created or transmit the already produced documents and for defendants to produce native documents with metadata intact

Nature of Case: Employment discrimination

Electronic Data Involved: Information regarding defendant’s information technology department, ESI

Hennigan v. Gen. Elec. Co., 2010 WL 4189033 (E.D. Mich. Aug. 3, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to compel production of data related to certain product defects and ordered defendant to bear plaintiff?s costs incurred for the 30(b)(6) deposition which revealed the existence of accessible, relevant information upon finding that both defendant and counsel failed to take reasonable efforts to locate responsive information; court ordered defendant?s to conduct searches using plaintiffs? proposed terms where the information sought was relevant and where defendant?s proposed terms were too narrow to identify all responsive information

Nature of Case: Product liability

Electronic Data Involved: Incident reports

Herbert v. Baker, 2010 WL 5330050 (E.D. Mich. Dec. 21, 2010)

Dec 01 2010

Key Insight: District court reversed the order of the Magistrate Judge compelling production of certain videotape where defendant presented evidence that the video in question was not responsive to plaintiff?s narrow request; court denied sanctions where different and relevant video was automatically overwritten before the lawsuit was initiated, where plaintiff presented no evidence of defendant?s notice of litigation, and where the lost video was not the only evidence to support plaintiff?s position

Nature of Case: Claims arising from police department’s alleged failure to prevent an intoxicated person from driving which resulted in death

Electronic Data Involved: Video surveillance footage

In re Sawstop Cases, 2010 WL 2483316 (D. Mass. June 14, 2010)

Dec 01 2010

Key Insight: Court ordered plaintiffs? production of cartridges containing relevant data (?akin to a ?black box??) that were relied upon by their expert in forming his opinions but found both parties proposed protective measures insufficient and ordered defendants to designate an expert or experts to review the cartridges, restricted access to the cartridges to defendants? expert(s) and counsel and their employees ?whose functions required access to the cartridge or cartridge information?, and ordered that each expert sign an agreement that they would not seek to develop technology similar to that at issue

Electronic Data Involved: Cartridge data “akin to a black box”

Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D. Pa. Mar. 31, 2010)

Dec 01 2010

Key Insight: Where third-party (and former defendant) signed stipulation to preserve and produce ESI as if still a party to the litigation and later sought reimbursement for the review and production of data in a particular database, court ordered a database be created comprised of the four custodians at issue, that plaintiff pay $4085 to the vendor as a ?start-up fee? (pursuant to their agreement to do so), and that plaintiff and third-party split the remaining costs of creating the database, but ordered third-party to bear the costs of its own review prior to production

Nature of Case: Antitrist litigation

Electronic Data Involved: Database

Read v. Teton Springs Golf & Casting Club, LLC, 2010 WL 2697596 (D. Idaho July 6, 2010)

Dec 01 2010

Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored

Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties

Electronic Data Involved: Email, hard drives

Tag:Motion to Compel