Category: ESI

A Cautionary Tale: Attorney Fees Awarded After Plaintiff’s Failure to Timely Produce ESI

Under FRCP 37(a)(5)(A), if a motion to compel is granted—or if requested discovery is provided after a motion is filed—a court can require the party whose conduct necessitated the motion “to pay the movant’s reasonable expenses incurred in making the motion, including attorney fees.” The Western District of Michigan recently considered this rule in Michigan Millers

Court Denies Defendant’s Burdensome Request to Conduct a 30(b)(6) Deposition Regarding Plaintiff’s ESI Production

When is a noticed deposition unnecessarily burdensome? In Koninklijke Philips Electronics v. Hunt, Civil Action No. 11-3684 (ES) (MAH) (D.N.J. Nov. 7, 2014), Plaintiff produced electronic documents. Following the production, defense counsel interviewed Plaintiff’s IT employee regarding Plaintiff’s ESI practices.  Nine months later, Defendant noticed a 30(b)(6) deposition to further inquire

Can Inadvertent Production of One Privileged Email Waive the Attorney-Client Privilege?

Under the 8th Circuit Court of Appeals’ jurisdiction, when does counsel’s inadvertent production of a privileged email constitute waiver of the attorney-client privilege?  An Iowa district judge recently considered that issue in Pick v. City of Remsen, No. C 13-4041-MWB (N.D.Iowa, September 15, 2014). In response to Plaintiff Pick’s requests for electronically stored

Email Spoliation Claim Can Move Forward Against Defendant

In Yontz v. Dole Fresh Vegetables, Case No. 3:13-cv-066 (S.D.Ohio, October 10, 2014), Plaintiff alleges retaliation and wrongful termination related to FLMA leave.  Plaintiff also claims that Defendant spoliated relevant emails.  Defendant moved for summary judgment on the spoliation allegation and on the underlying merits of the case.  The court considered

Plaintiff To Receive FRCP 37 Attorney Fees After Defeating Defendant’s Unjustified Motion To Compel

Under Federal Rule of Procedure 37(a)(5)(B), a court denying a motion to compel may award attorney fees to the prevailing party provided that the court does not conclude that the motion to compel was “substantially justified” or that “other circumstances [would] make an award of expense unjust.”  The party who lost the motion

Defendants Must Produce Archived Emails Even Though Plaintiff Cannot Do The Same

Plaintiff Finjan in the Northern District of California patent litigation case Finjan v. Blue Coat Systems, Case No. 5:13-cv-03999-BLF(2014 WL 5321095 (N.D.Cal.) recently won a contentious motion to compel regarding Defendant Blue Coat Systems’s refusal to produce emails from its archived database. Before the dispute arose, the parties had agreed to produce documents from a select number of custodians using

Can this Plaintiff Get Medical Records in Native File Format with Metadata?

Peterson v. Albert Matlock, et al., Civil Action NO. 11-2594(FLW)(DEA)(D.N.J. October 29, 2014) is a civil case of a prisoner suing the New Jersey DOC, alleging correctional officers severely beat him while in custody. As part of the defense production, PDF files of Plaintiff’s medical records were tendered. Plaintiff filed

Is Human Error a Valid Excuse for Missing Emails and Audio Recordings?

In Novick v. AXA Network, No. 07-CV-7767(AKH)(KNF)(S.D.N.Y. October 22, 2014), at issue is Plaintiff’s request for sanctions against Defendant for missing audio recordings and emails. The timeline is helpful to understand this case: Plaintiff alleged wrongful termination that occurred in October 2006 Plaintiff sent an evidence preservation request in October

When are Proposed Search Terms Overly Burdensome?

In TVIMM LLC v. McAffee, Inc., Case No. 13-cv-04545-VC(KAW)(N.D.Cal. October 15, 2014), a search term and electronic discovery dispute arose. Plaintiff eDiscovery requests sought email correspondence from Defendant. There was an agreed ESI Order, which dictated the parties were allowed five search terms. Further, they could not request “indiscriminate terms,

Is This Litigant Conflating the Dual Requirements of Federal Rule 34(b)(2)(E)?

In the patent case Ventura Corp. Ltd. et al., v. Barrett, Case No. 5:13-cv-03384-PSG (N.D.Cal. Oct. 16, 2014), pending before the court was a Motion to Compel filed by Barrett. The Motion alleged the plaintiff ESI production was unorganized and failed to be labeled to identify which documents were responsive