Motion to Compel – Page 84 – Electronic Discovery Law

Consolidated Rail Corp. v. Grand Trunk W. R.R. Co., 2009 WL 5151745 (E.D. Mich. Dec. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s production of 1200 pages ?as they were kept in the normal course of business? was sufficient pursuant to Rule 34 where plaintiff ?identified the document custodians and the range of Bates number for each custodian?s set of documents, along with the date associated with document creation,? where documents were produced in the order they were found on each hard drive, and where email attachments were produced directly following the corresponding email; plaintiff?s failure to arrange emails chronologically was not fatal to plaintiff?s production

Nature of Case: Declaratory judgment action, breach of contract

Electronic Data Involved: ESI, email

Whatman v. Davin, 2009 WL 4808807 (D.S.C. Dec. 9, 2009)

Dec 01 2009

Key Insight: Where defendant?s employee admitted to using her personal computer to work from home and plaintiff thereafter sought to compel defendant?s production of that computer, court found that ?plaintiff?s informal request for a forensic copy of [employee?s] personal home computer does not impose upon the defendants the burden of producing property outside its possession and control? and therefore denied plaintiff?s motion to compel

Nature of Case: Misappropriation of trade secrets and related claims

Electronic Data Involved: Employee’s personal computer

Grasso v. Bakko, 2009 WL 224022 (W.D. Wis. Jan. 29, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel inspection of plaintiff?s computer, despite plaintiff?s conflicting statements regarding the existence of a contract in 2005 and defendant?s resulting belief that plaintiff created the contract on her computer years later, where court determined the inspection would be unduly burdensome and where plaintiff carried the burden to prove the contract existed in 2005, not defendant

Electronic Data Involved: Hard drive

High Voltage Beverages, LLC v. Coca-Cola Co. 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009)

Dec 01 2009

Key Insight: Where defendant represented that any additional searching would only result in the discovery and production of duplicative documents, court denied plaintiff?s motion to compel defendant to search an identified alternative source upon finding ?that requiring defendant to sift sand for documents it has already produced would be unreasonably duplicative of earlier efforts and that the material contained therein is likely available from other sources, to wit, an earlier production of documents?

Electronic Data Involved: ESI

Surplus Source Group, LLC v. Mid-Am. Engine, 2009 WL 961207 (E.D. Tex. Apr. 8, 2009)

Dec 01 2009

Key Insight: Where the need for a third search of defendants? electronically stored information resulted from plaintiffs? delay in providing search terms, court ordered defendants to undertake third search, using terms provided by plaintiffs, but ordered plaintiffs to bear the cost of the third search, up to the amount equal to the second search, reasoning that such an order would essentially result in plaintiffs bearing the cost of the second search which was insufficient because of their delay

Nature of Case: Claims arising from defendants? alleged failure to split profits from sales of industrial equipment

Electronic Data Involved: ESI

A.N.S.W.E.R. Coalition v. Salazar, 2009 WL 1703232 (D.D.C. June 18, 2009)

Dec 01 2009

Key Insight: ?Unconvinced? that defendants had not unduly limited the scope of their search for responsive documents, court ordered additional searching but limited the scope of plaintiff?s proposed terms and parameters and ordered the parties to meet and confer regarding: an agreeable search methodology consistent with the court?s opinion, the identification of potentially responsive databases and custodians likely to maintain relevant information, and ?a list of search directives? likely to result in the identification of relevant documents

Nature of Case: Constitutional claims

Electronic Data Involved: ESI

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Dec 01 2009

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

Infor Global Solutions (MI), Inc. v. St. Paul Fire & Marine Ins. Co., 2009 WL 2390174 (N.D. Cal. Aug. 3, 2009)

Dec 01 2009

Key Insight: Where out of ?an apparent concern about the court imposed deadline,? plaintiff produced electronic documents without review because of technical difficulties opening certain files and emails and where plaintiff informed no one of the difficulties, sought no extension from the court for production, and did not qualify the production with any ?clawback? notice, court found that plaintiff had waived privilege and granted defendant?s motion to compel

Nature of Case: Insurance

Electronic Data Involved: Privileged ESI

SEC v. Strauss, 2009 WL 3459204 (S.D.N.Y. Oct. 28, 2009)

Dec 01 2009

Key Insight: Court found SEC had control of Delloitte & Touche database for purposes of Rule 34 analysis where SEC had both the practical ability and legal right to obtain the working papers contained therein but declined to compel SEC to grant access to defendant where he could obtain independent access to the database himself (by subpoena) and where the access requested would result in ?significant burdens? to SEC, including limiting its own access and interfering with the ability to view files

Nature of Case: Enforcement action for accounting fraud

Electronic Data Involved: Access to database

Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480 (Fed. Cl. Aug. 28, 2009)

Dec 01 2009

Key Insight: In this long discovery opinion, court conducted waiver analysis pursuant to Fed. R. Evid. 502 of 8 documents and found that privilege had been waived as to each document for a myriad of reasons including: a finding that production was not inadvertent where the document(s) at issue had been produced (via FOIA or discovery response) on more than one occasion, defendants failure to adequately establish the measures taken to prevent the disclosure of the document(s) at issue, defendants failure to adequately object to the use of the document(s) at deposition, and defendants failure to request the return of the document(s) following discovery of their production or to take other measures to rectify disclosure

Nature of Case: Breach of contract and taking without just compensation

Electronic Data Involved: Privileged emails and hard copy

Tag:Motion to Compel