FRCP 26(b)(1) Scope Defined by Relevance and Proportionality (effective Dec. 1

Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)

May 18 2022

Key Insight: The court was required to balance the proportionality factors to determine whether plaintiff’s proposed search terms that would require defendants to review 1.3 million documents were proportional to the needs of the case or if defendants’ proposal to review half as many documents was more proportional. In applying the proportionality factors, the court found it a “close call” but granted the motion in plaintiff’s favor, ordering defendants to apply plaintiff’s proposed search terms and to begin review of the documents and produce them on a rolling basis.

Nature of Case: Securities Fraud

Electronic Data Involved: Email

Case Summary

Jordan Khan Music Co. v. Taglioli (E.D. Tex. 2022)

May 12 2022

Key Insight: Plaintiffs moved to compel the forensic examination of defendants’ devices and data storage for imaging and inspection, along with their licenses for all software used for their businesses. Plaintiffs claimed the discovery was relevant to their RICO claim, alleging continued criminal copyright infringement of unlicensed software as a predicate act. Defendants claimed forensic examination would be vastly disproportionate to the issue. The court agreed with defendants and denied plaintiffs’ motion to compel, finding the forensic examination would allow plaintiffs to become privy to information beyond the scope of audio software and they could engage in the discovery process in a less invasive but still worthwhile manner. Accordingly, the court ordered that defendant revise their boilerplate objections and respond to plaintiffs discovery requests to identify computers, storage mediums and software used in Defendants’ business within a specific time frame.

Nature of Case: Trademark Infringement

Electronic Data Involved: Electronic Devices, Computers, Software

Case Summary

Orchestrate HR, Inc. v. Blue Cross and Blue Shield of Kansas, Inc. (D. Kan. 2022)

Mar 21 2022

Key Insight: The Magistrate denied defendant’s motion to add plaintiffs outside counsel as a list of documents custodians for ESI discovery purposes. The court noted that relatively little legal authority exists on the standards to apply when parties cannot agree on designated ESI custodians. Relying on the limited legal authority and The Sedona Principles, the court noted as follows: (1) determining what is relevant and proportional is a highly fact-specific inquiry; (2) absent agreement among the parties, the party responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information; (3) unless the party’s choice is unreasonable or results in a deficient production, the court should not dictate ESI custodians; and (4) the party seeking to compel the designation of a particular custodian has the initial burden to show that the disputed custodian’s ESI is relevant to the claims or defenses.

Nature of Case: Tort Claims

Electronic Data Involved: Email

Case Summary

In re Diisocyanates Antitrust Litigation (W.D. Penn. 2022)

Jan 07 2022

Key Insight: This multidistrict litigation involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), chemicals used in the manufacture of polyurethane foam and thermoplastic polyurethanes. The parties filed competing motions to compel regarding the use TAR and search terms. Plaintiffs moved to compel an order requiring the defendants to use plaintiff’s proposed search terms, or alternatively, to establish a process by which disputed search terms could be adjudicated. The E-Discovery Special Master made a recommendation to deny the motions and directed the parties to his prior report and recommendation on the parties’ TAR protocols to address concerns he raised their regarding the parties’ methodologies.

Nature of Case: Antitrust MDL

Electronic Data Involved: ESI

Case Summary

Doe v. Wesleyan University (D. Conn. 2021)

Oct 08 2021

Key Insight: Plaintiff was expelled from Wesleyan University after being accused of cheating on her exams. Defendant alleged that plaintiff accessed a computerized learning management system, “Moodle”, while taking her exams. Plaintiff claimed the Moodle logs upon which her expulsion was based were faulty. Plaintiff moved to compel discovery, including ESI relating to Moodle regarding the installation, implementation and administration of Moodle at the college. The court found plaintiff was entitled to explore discovery on how the Moodle system logs and registers time. The discovery was relevant to defendant’s affirmative defense that plaintiff cheated and determining the time zone settings of the Moodle log was relevant to Plaintiff’s contention that Moodle was accessed hours before Plaintiff was taking the exams in question.

Nature of Case: Negligence

Electronic Data Involved: Electronic Devices

Case Summary

O’Donnell/Salvatori Inc. v. Microsoft Corp. (W.D. Wash. 2021)

Oct 01 2021

Key Insight: Plaintiff moved the court to compel defendant to produce all non-privileged documents hitting on the agreed ESI search terms, regardless of whether they were relevant to a claim or defense in the case. Defendant had conducted a relevance review and withheld emails, such as employees joining or leaving the team, technical issues, and buying a new boat. The court denied plaintiff’s motion, finding that although there is little case law on the issue, “the courts that have addressed it have almost uniformly found that a relevance review, and the withholding of irrelevant documents, is appropriate.” Thus, the court ultimately held that “a party’s agreement to run search terms does not waive its right to review the resulting documents for relevance so long as the review can be done in a reasonably timely manner.”

Nature of Case: Copyright Infringement

Electronic Data Involved: Email

Case Summary

Collins v. ControlWorx, LLC (M.D. La. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce audio recordings, hard drives, social media posts. Defendants’ Motion was granted. At least a portion of the data that Plaintiff was obligated to produce had been destroyed and/or missing due to a flood. After Plaintiff informed it of us, Defendant agreed to provide Plaintiff with an extension of time to correct his deficient discovery responses. Contingent on time for Plaintiff to allow his deposition to be retaken.

In his Response to Defendant’s Motion, Plaintiff did not assert that he complied with his discovery obligations but rather than production of the information sought was unreasonably cumulative or duplicative. For approximately 18 requests for production, Plaintiff failed to provide a response or objection, and failed to timely supplement his responses.

The Court granted largely Defendant’s Motion to Compel, ordering Plaintiff to respond to its requests for production, and supplement his responses to interrogatories, but also limiting Plaintiff’s responses to documents that would not require disclosure of attorney-client privilege and/or information that was not overly broad. Moreover, the Court ordered Plaintiff to appear for an additional supplemental deposition and also state that electronically stored information relevant to the litigation was actually destroyed (due to flooding) and submit the damaged storage devises for expert inspection. The

respective parties were responsible for their own attorney’s fees and costs regarding the discovery issues.

Nature of Case: Employment Discrimination, Family and Medical Leave Act

Electronic Data Involved: Hard Drives, Audio Recordings, Social Media Posts

Case Summary

Huntsman v. Southwest Airlines Co. (N.D. Cal. 2021)

Aug 10 2021

Key Insight: The parties sought clarification on the scope of plaintiff’s discovery seeking documents relating to Southwest’s practices for verifying military leave. Defendant objected to the discovery requests on the basis of relevance, scope and proportionality, but agreed to conduct a phased search of its custodians’ data for responsive documents. The court agreed with defendant that the requests as written were overbroad given that the certified class was focused on an alleged failure to pay for short-term leave and plaintiff was not entitled to all potential USERRA violations. “Southwest’s approach to using keyword searches and technology-assisted review in tandem does not offend the court’s expectation that the parties conduct a reasonable inquiry as required by the rules.”

Nature of Case: Class action under USERRA

Electronic Data Involved: Email

Case Summary

Hinrichs v. Allstate Insurance Co. (W.D. Wash. July 20, 2021)

Jul 20 2021

Key Insight: Defendant sought discovery of plaintiff’s social media, e-mails and text messages, and recommended an e-discovery vendor to search and collect the ESI, at defendant’s expense. The court granted the motion, finding the requests are not overly broad since plaintiff placed her lifestyle and activities prior to the accident directly at issue by claiming that her prior activities far exceed what she can do now. There is no burden to plaintiff since defendant has offered to hire an e-discovery vendor to access and retrieve the data. Any privacy issues can be addressed pursuant to a stipulated protective order.

Nature of Case: Personal injury – insurance bad faith

Electronic Data Involved: Social Media, Email, Text Messages

Case Summary

Doe v. Purdue University (N.D. Ind. July 2, 2021)

Jul 07 2021

Key Insight: Defendants filed a motion for spoliation of evidence and sanctions after plaintiff failed to provide Snapchat data consistent with the parties’ joint stipulation and prior court orders, and deleted certain Snapchat files that were subject to the stipulation and orders. Plaintiff admitted he had deleted some files from his “memories” folder in Snapchat, but claimed they were irrelevant, and he did so to free up memory on his phone. The court found plaintiff was under a duty to preserve the Snapchat data and he breached that duty when he destroyed the data. Without the deleted files and believing plaintiff’s claim that he deleted the files to free up space and memory on his phone, the court could not find that plaintiff did so with the purpose of hiding adverse information and declined to dismiss plaintiff’s complaint. The court imposed monetary sanctions and ordered plaintiff to pay defendants’ attorney’s fees and costs associated with litigating the motion, and allowed defendants to introduce a limited jury instruction regarding the destruction of ESI.

Nature of Case: Civil Rights

Electronic Data Involved: Snapchat data

Case Summary

Tag:FRCP 26(b)(1) Scope Defined by Relevance and Proportionality (effective Dec. 1