Motion to Compel – Page 88 – Electronic Discovery Law

Ripley v. D.C., 2009 WL 1905070 (D.D.C. July 2, 2009)

Dec 01 2009

Key Insight: Where defendants repeatedly represented they had searched for and produced all relevant and available emails and also represented that some documents had been deleted ?per agency practice? before notice of litigation, but where defendants later found backup tapes containing thousands of responsive emails following plaintiff?s filing of a motion for sanctions, court rejected the applicability of Fed. R. Civ. P. 37(e) noting that ?defendants were unable to provide electronically stored information only because they had not searched all of the available files.?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Ford Motor Co. v. U.S., 2009 WL 2176657 (E.D. Mich. July 21, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part plaintiff?s motion to compel the government to produce documents in nine categories, including compelling the government to provide declarations outlining its search methodology and efforts and finding that the government need not attempt to recover emails that had been overwritten because of undue burden and costs, among other things; court rejected government argument that it had not produced a privilege loge because ?producing such a log would defeat [its] unduly burdensome objections? and ordered an ?adequately detailed privilege log for the responsive documents that it withholds from production?

Nature of Case: Action to recover interest accrued on overpayments of corporate income tax

Electronic Data Involved: ESI

Plan Pros Inc. v. Torczon, 2009 WL 3063017 (Sept. 18, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel re-production of financial information in its original Quickbooks format where the information was previously produced following conversion to .xls format which resulted in the loss of metadata and where defendants failed to argue that production in the original format (the form or forms in which it was ordinarily maintained) was not possible

Nature of Case: Copyright infringement

Electronic Data Involved: Financial ESI

In re Boxer Mgmt. Co., 2009 WL 4250123 (Tex. Ct. App. Sept. 3, 2009)

Dec 01 2009

Key Insight: Court of appeals conditionally granted petition for writ of mandamus and directed the trial court to vacate its order compelling the deposition of defendant?s corporate representative regarding the adequacy of defendant?s response to discovery (using specific question approved by the trial court) where such inquiry would concern the mental impressions of general counsel responsible for discovery (and the likely deponent) which are subject to work product protection; court also determined that absent evidence of discovery abuse, the deposition would constitute an impermissible fishing expedition

Nature of Case: Premesis liability

Electronic Data Involved: ESI

Bayview Loan Servicing, LLC v. Boland, 2009 WL 2424448 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where plaintiff responded to discovery by producing large quantities of documents on CD (which had been indexed and arranged by topic and subtopic) and directing defendants that the documents sought were contained thereon, court found the response was ?sufficient? as to the ?general requests? but that ?where Defendant asked for more specific information, Plaintiff is required to identify which document on the CDs in which loan files are responsive in order to comply with Rule 33(d)(1)? and ordered plaintiff to provide ?more complete and specific responses? to certain Interrogatories and Requests for Production

Nature of Case: Claims arising from alleged default on loan repayment

Electronic Data Involved: ESI

Hale v. Coors Distrib. Co., 2009 WL 1600678 (D. Colo. June 5, 2009)

Dec 01 2009

Key Insight: Finding that plaintiff?s counsel?s understanding of defendant?s computer capabilities was ?neither thorough nor accurate? and that the lack of understanding resulted in an inability to adequately articulate the nature of the information sought, and finding that the lack of understanding was attributable to both parties, court considered six part test to determine whether discovery should be re-opened and then granted plaintiff?s request for additional discovery, limited by the court?s instructions

Electronic Data Involved: Database information

In re Search of Kindhearts for Charitable Humanitarian Dev., 594 F. Supp. 855 (N.D. Ohio 2009)

Dec 01 2009

Key Insight: Finding the restrictions of a protective order preventing defendant?s access to its own electronic materials seized pursuant to a government investigation too onerous and unconstitutional in light of defendants need for access to assist in its defense, and where defendants sought only copies of the material seized such that the originals would remain preserved, court granted defendants motion to vacate or amend the protective order to allow access to the materials but indicated willingness to allow government to justify certain restrictions based on a showing of substantial need

Nature of Case: Challenge to governmental freeze on charity’s assets and seizure of documents and other tangible items pursuant to executive order

Electronic Data Involved: Copies of seized ESI

Omnicare, Inc. v. Mariner Health Mgmt. Co., 2009 WL 1515609 (Del. Ch. May 29, 2009)(Unpublished)

Dec 01 2009

Key Insight: Where plaintiff sought to compel defendants to restore backup tapes containing emails that were automatically deleted but where defendants objected to restoration and production due to cost, court denied plaintiff?s motion and ordered defendants to produce relevant data from their ?active stores? first in order to assess the likelihood of finding relevant, discoverable data on the backup tapes; if active stores showed a likelihood of recovery of discoverable data on the backup tapes, court stated that processing at defendants? expense would be appropriate

Nature of Case: Dispute arising between pharamaceutcal suppliers and nursing home operator related to contractual obligations and billing

Electronic Data Involved: Backup tapes

Siemens Aktiengesellschaft v. Jutai 661 Equipamentos Electronicos, LTDA, 2009 WL 800143 (S.D. Fla. Mar. 25, 2009)

Dec 01 2009

Key Insight: Finding that plaintiff was obligated to produce responsive ESI but was ?not required to conduct an unduly burdensome comprehensive search of its electronic archives,? court ordered parties to meet and confer ?for the purpose of establishing reasonable limitations on the scope of [Plaintiffs?] obligation to produce responsive electronically-stored information, which may include restricting the search to certain? employees and agreeing upon a list of search terms?

Nature of Case: Trademark infringement, unfair competition, trademark dilution

Electronic Data Involved: ESI

Bonn v. City of Omaha, 2009 WL 1740783 (D. Neb. June 18, 2009)

Dec 01 2009

Key Insight: Court found the requested electronic discovery ?not reasonably accessible? due to burden and cost and because the expense of the discovery outweighed the likely benefit and denied plaintiff?s motion to compel production of relevant emails where defendant stated they had already retrieved and produced all responsive emails from key individuals containing search terms proposed by plaintiff?s counsel

Nature of Case: Wrongful discharge

Electronic Data Involved: ESI

Tag:Motion to Compel