Motion to Compel

News & Analysis as of

Second Circuit Upholds Refusal To Compel Arbitration Due To Unavailable Forum, Recognizing Split In Federal Circuits

A borrower had previously entered into three payday loan agreements that contained arbitration provisions mandating that all claims be arbitrated in the National Arbitration Forum (NAF), and under the Code of Procedure of the...more

Trump University Files Motion to Compel Depositions of Allegedly Defrauded Consumers

On September 16, 2016, Trump University filed a motion to compel the New York State Attorney General to produce the names of the consumers who were allegedly defrauded by Trump University and to produce those witnesses to...more

California Court of Appeal Reinforces Prior Holdings and Allows Employer to Enforce Arbitration Award in Contract of Adhesion

In Da Loc Nguyen v. Applied Medical Resources, No. G057702 (Cal. Ct. App. October 14, 2016) (hereinafter “Nguyen”), the California Court of Appeal upheld a ruling compelling arbitration of plaintiff’s individual claims...more

Court Compels Arbitration To Determine The Arbitrability Of Reinsurance Dispute With Captive Insurance Company

In a suit by an auto body company against a captive insurance company for rescission of certain workers compensation reinsurance participation agreements, for disgorgement of $70,000 paid thereunder, and for fraud, breach of...more

Court Compels Party to Identify Knowledgeable IT Personnel (South Dakota)

Collins v. St. Paul Fire & Marine Ins. Co., 2016 U.S. Dist. LEXIS 135615 (D. S.D. Sept. 30, 2016) - In this bad faith diversity action, the plaintiff filed a motion to compel discovery. One of the issues was that the...more

The Tenth Circuit Affirmed Decision That Two Putative Class Actions Must Be Arbitrated

This dispute involves two cable subscribers (Andrew Alwert and Stanley Freedman) who filed putative class actions against Cox Communications Inc. for allegedly tying monthly set-top box payments to its premium cable services....more

Court Orders Party to Attempt On-Site Data Collection (New York)

Sky Med. Supply Inc. v. SCS Support Claim Servs., 2016 U.S. Dist. LEXIS 121215 (E.D.N.Y. Sept. 7, 2016) - In this RICO case, the defendants filed a motion to compel, arguing that the plaintiff responded to an ESI request...more

Should You Litigate In Court or Arbitrate the Dispute?

Faced with the rising costs of doing business in our increasingly litigious society, today's employers are looking at any way to manage fees and costs associated with resolving disputes over employment decisions. Some of the...more

Think Your Arbitration Award Is Final? Maybe “Look Through” It Again

The question of federal court jurisdiction over arbitration proceedings has historically led to different conclusions. A few years ago, the United States Supreme Court clarified in Vaden v. Discover Bank that Section 4 of...more

A Self-Inflicted High Discovery Cost Does Not Render Information “Inaccessible”

Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570 (W.D. Va. July 13, 2016). In Wagoner v. Lewis Gale Med. Ctr., LLC, court held that the plaintiff’s “limited request” for discovery, “restricted by custodian, search...more

Eleventh Circuit Doubles Down On The Importance Of Selecting An Available Arbitration Forum

The Eleventh Circuit affirmed a district court’s denial of a motion to compel arbitration on the grounds that the designated forum in the arbitration agreement was both unavailable and integral to the agreement. Appellee...more

Court Denies Defendant’s Motion for Production of Documents for In Camera Review: eDiscovery Case Law

In Portland Pipe Line Corp. et. al. v. City of South Portland et. al., No. 15-00054 (D. Maine, Sept. 8, 2016), Maine Magistrate Judge John H. Rich, III denied the defendants’ motion to compel the production of documents...more

Tennessee Business Court Decides “who goes first” in Discovery in Trade Secrets Case

In a Tennessee Uniform Trade Secrets Act (“TUTSA”) case, the Tennessee Business Court set some discovery guidelines for business competitors in litigation over alleged misappropriation of trade secrets. Cryosurgery, Inc. v....more

Court Will Not Force Responding Party to Use TAR; Judge Peck Authors another Key Predictive Coding Opinion (New York)

Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016) - In this employment discrimination case, the plaintiff moved to compel the defendants to utilize Technology Assisted Review (TAR) when...more

Divided Third Circuit Panel Holds That Waiver Of Arbitration Clause Does Not Apply To Futile Arguments

On July 13, 2016, a U.S. Court of Appeals for the Third Circuit panel held that an arbitration clause is not waived simply because a party failed to raise a futile argument. The case arose out of a putative class action...more

Appeals Court Upholds Default Judgment for Discovery Violations, Including Wiping Files from Laptop: eDiscovery Case Law

In Trude et. al. v. Glenwood State Bank, et. al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App., Aug. 15, 2016), a Minnesota Appeals Court affirmed the trial court’s entry of default judgment for repeated discovery...more

Proportionality Factors Persuade Court to Grant Motion to Compel (Pennsylvania)

First Niagara Risk Mgmt. v. Folino, 2016 U.S. Dist. LEXIS 106094 (E.D. Pa. Aug. 11, 2016) - In this dispute over the violation of a non-compete agreement, the plaintiff moved the court to compel a discovery request....more

“Rather Broad” Discovery Request Is Nonetheless Proportional to Case

First Niagara Risk Mgmt., Inc. v. Folino, No. 16-1779 (E.D. Pa. Aug. 11, 2016). The court concluded that the plaintiff’s requested scope of discovery from the defendant’s electronic devices, while “rather broad,” was...more

Court Limits Request for Social Media to Certain Relevant Information (Louisiana)

Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016) - In this personal injury case, the defendant moved the court to compel a wide range of discovery related to the plaintiff’s social media...more

Court Refuses to Compel Disclosure of Archived E-Mails Due to “Undue Burden and Cost”

Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016). After a previous order granting the plaintiff’s motion to compel discovery of “live” e-mails, the court denied the plaintiff’s...more

Court Holds that Predictive Coding Does Not Change Discovery Standard (Federal Circuit)

Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016) - In this tax case, the respondent sought a motion to compel the petitioners to provide documents...more

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: eDiscovery Case Law

In Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016), Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored...more

Court Refuses to Compel Production of Archived Emails on Backup Tape (Washington)

Elkharwily v. Franciscan Health Sys., 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016) - In this employment discrimination case, the plaintiff moved the court to compel production of discovery from archived email....more

Order Compelling Arbitration Reversed Due To Failure To Determine The Existence And Scope Of Arbitration Agreement

The Ninth Circuit recently reversed a trial court for compelling arbitration without issuing an order that (1) made “the necessary factual findings as to the parties’ communications,” (2) determined “the law applicable to...more

Futility Trumps Waiver of Arbitration Rights in Third Circuit

Echoing a holding already issued by four other circuits, the Third Circuit recently found that a defendant does not waive its right to arbitration by continuing to litigate in court, if the reason it failed to move to compel...more

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