Motion to Compel – Page 90 – Electronic Discovery Law

Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009)

Dec 01 2009

Key Insight: Where plaintiff made a preliminary showing of spoliation, including testimonial evidence from defendant?s 30(b)(6) deponent that no one talked to her about creating a litigation hold policy and deposition testimony from defendant?s witness that he didn?t save anything, court ordered the production of defendants litigation hold letters (with information unrelated to the litigation hold redacted); court reasoned that ?if defendants deleted emails that should have been preserved, this was a relevant factor for the court to consider when it decided whether it was prohibitively burdensome or expensive for the Defendants to retrieve its archived emails.?

Nature of Case: Allegations of discriminatory safety inspections of African American owned buses en route to Atlantic City

Electronic Data Involved: Litigation hold letter

Commonwealth v. Ruddock, 2009 WL 3400927 (Mass. Sup. Ct. Oct. 2009)

Dec 01 2009

Key Insight: Recognizing that the defendant would be ?severely handicapped? absent expert consultation and finding that requiring defendant?s expert to examine the evidence while in the commonwealth?s custody would burden defendant?s rights to effective assistance of counsel and create the risk that his work product would be accessible to the government, court ordered mirror image of defendant?s hard drive to be produced, but entered a strict protective order limiting its use and dissemination

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

Ergo Licensing, LLC v. Carefusion 303, Inc., 263 F.R.D. 40 (D. Me. 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege as to 31 pages of inadvertently produced documents (out of 540) where plaintiff took reasonable precautions to prevent the disclosure, including conducting a multi-part privilege review, and where plaintiff acted promptly to rectify the inadvertent production as soon as it became aware of it; in so holding, court rejected defendant?s assertions that plaintiff?s failure to ?independently recognize? the error in production had bearing on the issue and that fairness weighed in favor of waiver where the documents directly supported its defense

Nature of Case: Patent ligitation

Electronic Data Involved: Privileged email, ESI

United States v. Haymond, 2009 WL 2835398 (D. Okla. Aug. 28, 2009)

Dec 01 2009

Key Insight: Where law requires denial of a request to copy or reproduce child pornography as long as the material is made ?reasonably available? to defendant and where defendant?s expert claimed an inability to locate the alleged illegal images on the forensic copy of the hard drive to which he was provided access, court indicated reticence to order the production of ?file data? to assist in the location of relevant images on the drive, but ordered defendant?s expert to instead coordinate access to the previously provided copy and for the government to assist his efforts by providing ?software keys? in there possession ? if effort failed, court indicated willingness to consider ordering production of the requested ?sector and file? information to assist defendant?s expert?s examination

Nature of Case: Child pornography

Electronic Data Involved: Images on hard drive

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

Knights Armament Co. v. Optical Sys. Tech., Inc., 2009 WL 331608 (M.D. Fla. Feb. 10, 2009)

Dec 01 2009

Key Insight: Finding that defendant?s delay in producing a privilege log and the insufficiency of the entries therein supported a finding of waiver, court nonetheless declined to impose the ?extreme sanction? of waiver as to the actual privileged communications but held that defendants had failed to establish that the attached ?preexisting business records? were privileged or protected and ordered the them produced

Nature of Case: Trademark infringement, false advertising, unfair competition, and other claims

Electronic Data Involved: Emails

Plew v. Ltd. Brands, Inc., 2009WL 1119414 (S.D.N.Y. Apr. 23, 2009)

Dec 01 2009

Key Insight: Denying plaintiff?s motion to compel, court rejected plaintiff?s argument that emails sent to and from a non-party could not be protected as work product where email exchanges occurred at the behest of counsel, because of the relevant litigation, and where there was no indication that the communications were likely to be revealed to plaintiff or any other adversary of the defendant

Nature of Case: Patent infringement

Electronic Data Involved: Emails

Ashman v. Solectron Corp, 2009 WL 1684725 (N.D. Cal. June 12, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where court ordered plaintiff to return documents retained improperly following termination of his employment but allowed him to utilize any such documents produced by defendant in the ?normal course of discovery? and where defendant argued that it need not produce the documents returned by plaintiff if it could not find the documents in its own system as such documents were outside the scope of ?normal? discovery, court ordered defendant to produce the non-privileged and relevant documents because they were within defendant?s ?legal possession, custody and control? and thus subject to disclosure

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Brodsky v. Humana, Inc., 2009 WL 1956450 (N.D. Ill. July 8, 2009)

Dec 01 2009

Key Insight: Addressing whether certain of plaintiff?s requests were unduly burdensome relative to the likely benefit of production, court granted in part and denied in party plaintiff?s motion to compel upon determining that certain requests were unduly burdensome in light of the estimated time and effort to respond

Nature of Case: Violations of Telephone Consumer Protection Act

Electronic Data Involved: ESI, mirror image drives

Tag:Motion to Compel