Discoverability Scope, Including FRCP 26(b)(1) Scope (Prior to Dec. 1, 2015) – Page 18

Glover v. Standard Fed. Bank, 2001 WL 34635710 (D. Minn. Nov. 9, 2001)

Dec 01 2004

Key Insight: Where evidence showed there was no feasible and economic electronic means by which certain data could be produced, court ruled that, to the extent defendants intended to introduce evidence related to such data at trial, defendants would be required to produce all such evidence, documentary, electronic or otherwise, upon which they intend to rely

Nature of Case: Class action

Electronic Data Involved: Information regarding damages, offsets and class member eligibility

Times Publ’g Co. v. City of Clearwater, 830 So.2d 844 (Fla. Dist. Ct. App. 2002)

Dec 01 2004

Key Insight: Email stored in government computers does not automatically become public records by virtue of that storage; private or personal email fell outside the statutory definition of “public records”

Nature of Case: Newspaper sued city to release as public record all email sent from or received by two city employees

Electronic Data Involved: Email

In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. 11 (S.D.N.Y. 1994)

Dec 01 2004

Key Insight: Grand jury subpoena demanding production of all computer hard drives and disks of specified individuals (as opposed to specified categories of information) quashed because it was unreasonably broad

Nature of Case: Grand jury proceedings

Electronic Data Involved: Computer hard drives and floppy diskettes

Toledo Fair Hous. Ctr. v. Nationwide Mut. Ins. Co., 703 N.E.2d 340 (Ohio 1996)

Dec 01 2004

Key Insight: Requiring insurer to create programs to retrieve and put in usable form information from its databases at its own expense, court stated: “[A] party cannot avoid discovery when its own recordkeeping system makes discovery burdensome. If a party chooses to store information in a manner that tends to conceal rather than reveal, that party bears the burden of putting the information in a format useable by others.” However, court did order that request for computer-generated reports be narrowed.

Nature of Case: Minority homeowners brought civil rights action alleging that insurer engaged in redlining to avoid minority neighborhoods

Electronic Data Involved: Insurer’s databases and computer-generated reports

In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004)

Dec 01 2004

Key Insight: Supreme Court of Wisconsin quashed as overbroad a “John Doe” subpoena seeking all digital computer information or data maintained by the legislature’s technology services bureau, stored by or on behalf of certain named elected officials, any person who had ever been employed in their offices, as well as anyone who had ever been employed in the legislative caucuses for both parties or, in the alternative, the backup tapes from December 15, 2001, for the entire legislative branch of government

Nature of Case: Criminal investigation relating to political caucuses and actions of certain legislators

Electronic Data Involved: All digital computer information or data, and backup tapes for the entire legislative branch of government

Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Dec 01 2004

Key Insight: Court created its own eight-factor test by adding one more factor to the Zubulake seven-factor test, and determined that cost-shifting was appropriate (responding party 25% and requesting party 75%)

Nature of Case: Sexual harassment

Electronic Data Involved: Email stored on backup tapes

Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)

Dec 01 2004

Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”

Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)

Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data

Williams v. Hernandez, 2004 WL 1161318 (S.D.N.Y. May 25, 2004)

Dec 01 2004

Key Insight: Production request for all email to or from individual defendant during specified period was overly broad and burdensome, since plaintiff failed to justify the wholesale production of emails and failed to indicate why there would be relevant information concerning her claims in such emails

Nature of Case: Sex discrimination, negligent hiring and battery

Electronic Data Involved: Email

Lipco Elec. Corp. v. ASG Consulting Corp., 2004 WL 1949062 (N.Y. Sup. Ct. Aug. 18, 2004) (Unpublished)

Dec 01 2004

Key Insight: Noting differences between federal law and New York law regarding cost-shifting in discovery, court stated it did not have sufficient information about the costs associated with the requested discovery, but concluded that until plaintiffs indicated a willingness to pay for the requested electronic discovery (whatever its cost), court would not order its production

Nature of Case: Claims based on breach of contract and for an accounting

Electronic Data Involved: Computer data

In re Worldcom, Inc. Sec. Litig., 2004 WL 1068032 (S.D.N.Y. May 13, 2004)

Dec 01 2004

Key Insight: Parties ordered to resolve, within five days, scope of electronic discovery to be made by each plaintiff through the completion of the meet and confer process; if no resolution reached, hearing to be held six days later to resolve outstanding issues

Nature of Case: Individual securities fraud actions

Electronic Data Involved: Electronic discovery

Tag:Discoverability Scope, Including FRCP 26(b)(1) Scope (Prior to Dec. 1, 2015)