FRCP 26(b)(1) Scope Defined by Relevance and Proportionality (effective Dec. 1 – Page 3

In re Rail Freight Fuel Surcharge Antitrust Litig. (D.D.C. May 12, 2021)

May 12 2021

Key Insight: District court rejected, in part, plaintiffs’ request for new discovery of rail-freight transaction data from defendants, the four largest railroads operating in the Unites States. Plaintiffs alleged defendants engaged in a price-fixing conspiracy to increase the price of rail-freight transport from 2003 to 2008. The court granted the request to produce 2009 data as proportional because defendants already had access to the data. The court denied the request for 2010-2012 data, finding it was not proportional at that stage in the litigation. It was not connected to the central issue in the case as to whether defendants engaged in a price-fixing conspiracy, even though it might be relevant to certain plaintiffs’ calculation of full damages.

Nature of Case: Antitrust

Electronic Data Involved: Transaction Data

Case Summary

Healthedge Software, Inc. v. Sharp Health Plan (D. Mass. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce documents, including source code, and Plaintiff filed a Motion to Compel Defendant to disclose how it collected and searched its electronically stored information (ESI). The Court granted Plaintiff’s Motion while partially granting Defendant’s Motion.

A significant issue in both Motions was the respective parties’ collection of ESI. The Court noted that the parties failed “to engage in cooperative planning regarding ESI”, and directed the parties to confer regarding custodians and search terms of ESI collection and review. In partially granting Defendant’s Motion, the Court directed Plaintiff to further articulate its objections, but stated that some of Defendant’s discovery requests were premature even if Plaintiff was obligated to respond to them by the close of discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Electronic Documents, Source Code

Case Summary

Martinez-Sanchez v. Anthony Vineyards, Inc. (E.D. Cal. Apr. 29, 2021)

Apr 29 2021

Key Insight: The burden of production and utility of the employee badge scans sought by plaintiffs outweighed the benefit to plaintiffs of analyzing the information because: (1) the timekeeping software did not have a reporting function for timestamps and collecting the information would require at least 22,000 hours of manual work; (2) the software only contained records for some months of 2019, less than a quarter of the four-year class period; and (3) the timestamps do not definitively establish the time at which the event happened. Plaintiffs were only entitled to the data in the form in which it is ordinarily maintained. Further, plaintiffs’ request for another copy of defendants’ payroll data would be needlessly cumulative as defendants had provided alternative solutions to plaintiffs’ data extraction and reporting issues. Lastly, although the magistrate judge’s order did not explicitly cite to Rule 26(b)(2), the court’s reasoning clearly fell under Rule 26(b)(2)(B), which permitted the court to deny the production of ESI where the information is “not reasonably accessible because of undue burden or cost” irrespective of whether the magistrate judge had analyzed all the proportionality factors contained in Rule 26(b)(1).

Nature of Case: Labor and Employment

Electronic Data Involved: Timekeeping Data

Case Summary

Matter of the Complaint of Paradise Family (M.D. Fla. 2021)

Apr 28 2021

Key Insight: Plaintiff’s social media account information (Facebook and Instagram) is relevant and proportional to his alleged damages for loss of the capacity to enjoy life. Social media is not privileged or protected by any right of privacy.

Nature of Case: Admiralty

Electronic Data Involved: Social Media

Case Summary

Lukis v. Whitepages Incorporated (N.D. Ill.)

Apr 23 2021

Key Insight: Plaintiff filed a Motion to Compel and to Extend Fact Discovery Deadline after Defendant refused to substantively respond to Plaintiff’s discovery requests. Similarly, Defendant also had filed Motion to Compel Plaintiff to respond to its discovery requests regarding online account information, social media and browser history. The Court granted Plaintiff’s Motion(s) and partially granted Defendant’s Motion to Compel. The fact discovery deadline in the matter was extended to approximately two months after the Court’s order(s).

Nature of Case: Class Action Lawsuit

Electronic Data Involved: Social Media, Online Account History, Privacy Settings on Websites, Internet Browser History

Case Summary

Lamaute v. Power (D.D.C. 2021)

Apr 18 2021

Key Insight: In using the proportionality test, each factor should be examined to balance the needs and rights of both parties and determine an appropriate resolution. When requests are overbroad and not proportional to the needs of the case, the court may limit the scope of the documents a party is required to produce.

Nature of Case: Employment Discrimination, Title VII

Electronic Data Involved: Electronic Documents Generally

Case Summary

Hastings v. Ford Motor Co. (S.D. Cal. 2021)

Apr 02 2021

Key Insight: In litigation over product defect claim(s), Plaintiff filed a Motion to Compel Defendants to produce additional records pursuant to its discovery requests. The Motion centered around search terms that Plaintiff sought to compel Defendants to utilize in searching for responsive records. Reviewing specific Requests for Production, the Court found that they were overbroad and lacked relevance. Plaintiff’s Motion was denied, and Plaintiff was ordered to show why it (and counsel) should not have to reimburse Defendants’ for attorney’s fees and expenses in responding to the Motion.

Nature of Case: Contract Product Liability

Electronic Data Involved: Search Terms

Case Summary

Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.

The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.

Nature of Case: Employment

Electronic Data Involved: Text Messages, iMessages, Cellular Phone

Case Summary

Brown v. SSA Atlantic (S.D. Ga. 2021)

Mar 16 2021

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Copenhaver v. Cavanga Group S.p.A Omeca Division (D. Mont. 2021)

Mar 12 2021

Key Insight: If a motion to compel is granted, the party whose conduct necessitated the motion is required to pay reasonable expenses in making the motion, including attorney fees. However, payment cannot be ordered if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action.”

Nature of Case: Products Liability

Electronic Data Involved: Email, Electronic Documents Generally

Case Summary

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