Motion to Compel – Page 92 – Electronic Discovery Law

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

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Laethem Equip. Co. v. Deere & Co., 2009 WL 4069279 (E.D. Mich. Nov. 23, 2009)

Dec 01 2009

Key Insight: Where upon the court?s order to produced any privileged documents not properly and timely logged plaintiff produced only certain documents and redacted others, and where plaintiff explained that the withheld and redacted documents were duplicates of documents previously determined to be privileged by the court, court denied defendant?s motion to compel and stated: ?Where a written communication is found to be protected by the attorney-client privilege, an identical copy of that document, when challenged, ought to yield the same result, despite a different indexing number for the copy. To treat identical copies of the same document differently based solely on the numerical designation in a data log elevates form over substance in the worst way.?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: Privileged materials

Bass v. Miss Porter?s School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009)

Dec 01 2009

Key Insight: Upon in camera review of all documents produced to plaintiff by Facebook pursuant to subpoena, and in response to plaintiff?s objection to producing all such documents on the grounds that many were irrelevant and immaterial, court found ?no meaningful distinction? between the pages produced and the pages withheld and stated that ?Facebook usage depicts a snapshot of the user?s relationship and state of mind at the time of the content?s posting? and that ?relevance is more in the eye of the beholder? such that production should not be limited to plaintiff?s determination of what may be ?reasonably calculated to lead to the discovery of admissible evidence? and ordered the production of all documents produced by Facebook to defendants, rather than the smaller subset previously provided

Nature of Case: Claims arising from alleged bullying and harassment of private school student

Electronic Data Involved: Facebook

Tag:Motion to Compel