Key Insight: Conduct discovery in good faith; Maintain a civil tone in communications; Purge of emails
Nature of Case: Employment Discrimination
Electronic Data Involved: ESI; email; SMS; Text messages
Keywords: Good Faith; Proportionality; Meet and confer; Rule 16 – Scope of discovery; Purge of emails; Complete breakdown of discovery
Key Insight: Court affirmed order of Magistrate Judge declining request for additional discovery based on Defendant?s alleged violation of the parties? protocol for discovery. Where parties agreed that each would disclose the eight custodians ?most likely? to have discoverable ESI, Plaintiff claimed that Defendant failed to name its VP of North American sales in a ?systematic and pervasive effort? to prevent the disclosure of discoverable documents. Magistrate Judge reasoned that Plaintiff needed to explain why its proposed custodians were better than those identified by Defendant and permitted Plaintiff to conduct a test search at its expense, which uncovered few additional documents. Magistrate Judge held that absent a showing that Defendant violated the protocol, it should be enforced, noting that ?for good or ill? Plaintiff had agreed to limit the searches. Affirming the order, the District Court noted that the protocol required the identification of custodians ?most likely? to have discoverable information (describing the ?before-the-fact perspective?) and not the custodians that IN FACT had the most discoverable ESI and also that Plaintiff had failed to take up the Magistrate Judge?s invitation to provide additional search terms for the test, which may have identified additional information to bolster their position
Nature of Case: Patent Infringement
Electronic Data Involved: ESI from 8 custodians “most likely” to have responsive information
Key Insight: The special master considered relevancy to be as broad as the subject matter, which is broader than the scope of discovery contemplated by Rule 26… did not satisfy its burden to show that the information it requests from Highmark is relevant, the court is not required to analyze whether that request is proportional to this case
Nature of Case: Antitrust
Keywords: Reasonably Calculated
Key Insight: proportionality with regards to relevancy
Nature of Case: Products Liability
Electronic Data Involved: Communications between foreign entities that sell the product and foreign regulatory bodies regarding the products
Keywords: Proportionality, marginally relevant, relevancy
Key Insight: Proportionality, Fraud
Nature of Case: Non-compete enforcement
Electronic Data Involved: scope of discovery
Keywords: Sedona principles
Key Insight: Applying the proportionality factors in Rule 26(b)(1) (including specific contemplation of Defendants? ?corporate resources? and the ?potentially very large? amount in controversy) and reasoning that the Sixth Circuit has held that ?limiting the scope of discovery is appropriate when compliance ?would prove unduly burdensome,? not merely time-consuming or expensive? and that Defendants failed to propose an alternative method of discovery ?enabling some lesser degree of production,? the court directed the parties to cooperate and indicated it would schedule a conference to discuss ?whether and to what extent discovery should proceed in phases?
Nature of Case: Putative class action re: design or manufacturing defect
Electronic Data Involved: ESI
Key Insight: Where the parties agreed to a Joint Discovery Plan requiring production in PDF unless metadata was requested and that in such cases the parties should meet and confer to discuss the format of production in good faith and where Defendant made such a request and sought to confer but was ignored, court ordered Plaintiff to re-produce emails with associated metadata at its own expense
Electronic Data Involved: Emails and metadata
Key Insight: Court addressed parties? disagreement regarding a search and production protocol and considering three options presented by Plaintiff (1) ?sampling and iterative refinement?; 2) a quick peek at all documents to designate a limited number for production; or 3) production of all documents with search hits subject to a clawback agreement) and defendant?s resistance based in proportionality, reasoned that ?[g]iven that there are 1,047 opt-in plaintiffs, ?potentially hundreds more as class members? in the four states . . . and a possible verdict in eight or nine digits if plaintiffs are successful, defendant?s proportionality argument is unavailing?; court ordered defendant to search files of 8 custodians using its own proposed terms (thus creating a presumption of relevancy) and further ordered that defendant could remove documents from production ?only if they are clearly and undeniably irrelevant? or privileged
Nature of Case: Class action
Electronic Data Involved: ESi
Key Insight: Where FDIC spent $614,000 to digitally scan about 2.01 terabytes of data or 153.6 million pages of documents after taking over failing bank, and before any written document requests were served, court evaluated parties? competing proposals for conducting e-discovery, discussed the governing standards for manner of document production, formatting issues, and cost-shifting for digital format conversion expenses, and ultimately approved protocol offered by FDIC; court further instructed that, in the event of any further ESI-protocol disagreement or objection to the court?s decision, the parties must first confer and attempt to craft a joint ESI protocol or consent order in light of the principles highlighted in the court?s ruling
Nature of Case: Bank receiver brought bank mismanagement case against 16 of bank’s former directors and officers
Electronic Data Involved: Records of failed bank
Copyright © 2025, K&L Gates LLP. All Rights Reserved.