Motion to Compel – Page 98 – Electronic Discovery Law

E.E.O.C. v. Beauty Enters., Inc., 2008 WL 3359252 (D. Conn. Aug. 8, 2008)

Dec 01 2008

Key Insight: Where plaintiffs argued that several BEI supervisors had testified they had not been instructed to preserve documents related to case, court agreed that defense counsel?s litigation hold letter was privileged and ordered BEI to disclose date on which letter was sent and names of recipients

Nature of Case: Employment discrimination

Electronic Data Involved: Letter from BEI’s counsel to BEI supervisors advising them to implement a litigation hold

Baxter Healthcare Holding, Inc. v. Fresenius Medical Care Holding, Inc., 2008 WL 4547190 (N.D. Cal. Oct. 10, 2008)

Dec 01 2008

Key Insight: Finding each email in string a ?separate communication for which a privilege may or may not be applicable? court rejected defendants? argument of extreme burden and ordered production of ?proper privilege log? identifying required information for each message; court ordered defendants to identify author, recipient, or copyee of redacted documents already in plaintiffs possession finding it ?unreasonable? to require of plaintiffs because defendants were obligated to justify privilege claim

Nature of Case: Patent Infringement

Electronic Data Involved: Privileged emails

AIU Ins. Co. v. TIG Ins. Co., 2008 WL 5062030 (S.D.N.Y. Nov. 25, 2008)

Dec 01 2008

Key Insight: Court granted motion to compel additional electronic searching as to certain custodians where defendant established their potential relevance and where plaintiff failed to establish additional search would be unduly burdensome or that custodians had no relevance to litigation; court noted that plaintiff?s assertions that documents referencing custodians at issue were drafted before the popularization of email does not excuse obligation to search for potentially relevant materials even where the search may be ?fruitless?

Nature of Case: Breach of reinsurance contracts

Electronic Data Involved: ESI, email of particular custodians

New Albertsons Inc. v. Superior Court, 86 Cal. Rptr. 3d 457 (Cal. Ct. App. 2008)

Dec 01 2008

Key Insight: Court issued writ of mandate vacating award of sanctions against defendant for spoliation of video and photographic evidence where trial court had no statutory or inherent authority to order sanctions absent defendant?s violation of a court order or sufficiently egregious or exceptional circumstances and, where by failing to timely move to compel further response upon Albertson?s alleged deficient production, plaintiffs waived their rights to do so

Nature of Case: Negligence and premises liability

Electronic Data Involved: Video and photographic evidence

Integrated Serv. Solutions, Inc. v. Rodman, 2008 WL 4791654 (E.D. Pa. Nov. 3, 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion to compel production of search ?hits? from non-party?s laptop where agreed upon neutral third party conducted search, where counsel reviewed hits and concluded none were relevant, and where plaintiff provided no showing of bad faith or indicia of unreliability; court offered plaintiff option to request report indicating methods utilized in search, broad description of documents hit, and confirmation of no evidence of wiping

Electronic Data Involved: Laptop computer files

Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008)

Dec 01 2008

Key Insight: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email and other ESI

Binary Semantics Ltd. v. Minitab, Inc., 2008 WL 2020362 (M.D. Pa. May 5, 2008)

Dec 01 2008

Key Insight: Court denied as overly-broad and intrusive defendant’s request that its forensic expert be permitted to make complete forensic copy of plaintiff’s File Server and FTP server; court instead would allow forensic expert to make forensic copy of relevant folders on plaintiff’s FTP server

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Metadata

L.H. v. Schwarzenegger, 2008 WL 2073958 (E.D. Cal. May 14, 2008)

Dec 01 2008

Key Insight: Where defendants converted ESI from their original format, which had been searchable and sortable, into PDF files which did not have these capabilities, court cited Advisory Committee Notes to the 2006 amendment to FRCP 34(a)(1)(A) and found that defendants violated Rule 34 by producing documents which were not searchable or sortable, notwithstanding that plaintiffs did not request the documents in native electronic format; court ruled on various other discovery disputes and awarded plaintiffs monetary sanctions in light of defendants’ “purposeful foot dragging on discovery” and resulting prejudice to plaintiffs

Nature of Case: Class action lawsuit regarding California’s treatment of juvenile wards and parolees

Electronic Data Involved: Databases and other ESI

Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 2008 WL 3200822 (N.D. Cal. Aug. 7, 2008)

Dec 01 2008

Key Insight: District court overruled defendants’ objections to magistrate judge’s order compelling production of certain ESI, rejecting claim that requested discovery was unduly burdensome; although defendants claimed they had more than 1500 servers, court noted that discovery was limited to 67 specific web sites and defendants had offered no evidence to suggest that they could not narrow the number of servers on which responsive content might exist; court ordered parties to meet and confer to agree upon protocol for obtaining the requested discovery

Nature of Case: Contributory and vicarious trademark and copyright infringement claims against internet service providers who host third-party websites on their servers

Electronic Data Involved: Publicly-posted Internet content evidencing offers made of counterfeit Louis Vuitton merchandise and traffic logs evidencing the volume of underlying counterfeit activity, limited to 67 allegedly infringing websites identified by plaintiff

In re Zurn Pex Plumbing Prod. Liab. Litig., 20008 WL 5104173 (D. Minn. Nov. 26, 2008)

Dec 01 2008

Key Insight: Court compelled production of deponent to answer specifically tailored questions regarding retention of electronically stored documents where plaintiff suspected spoliation due to defendant?s failure to timely issue preservation notices and where inquiry into retention policies would assist in narrowing scope of discoverable electronic materials; court also compelled production of identity of author of relevant email

Nature of Case: Products liability

Electronic Data Involved: Document retention policies, email

Tag:Motion to Compel