FRCP 26(b)(1) Scope Defined by Relevance and Proportionality (effective Dec. 1 – Page 5

Densen v. The Corporation of the President of the Church of Jesus Christ of Latter- Day Saints (D. Utah 2020)

Jun 29 2020

Key Insight: A forensic imaging of Plaintiff’s electronic devices and cloud based accounts was warranted because Plaintiff lost relevant evidence during the discovery process and continually made misrepresentations regarding this evidence and how it was stored. The forensic imaging would preserve any evidence and possible recover evidence that has been loss. This would not be an invasion of privacy as Plaintiff’s privacy can be adequately protected. A third party service provider can image the devices and collect the data. Counsel would not have access to any of the data until after the court approves a review plan, which would implement additional safeguards to ensure there is no access to irrelevant or private information.

Nature of Case: Sexual Assault, Fraud

Electronic Data Involved: Audio Recording, Cloud Based Account Data, Electronic Device Data

Case Summary

EEOC v. George Washington Univ. (D.D.C. June 26, 2020)

Jun 26 2020

Key Insight: Under FRE 502(d), inadvertent disclosures do not result in a waiver of privilege. While this rule can be utilized to reduce costs of pre-production privilege review, a party cannot be forced to engage in a discovery process that would likely result in the production of privileged documents.

Nature of Case: Employment Discrimination, Equal Pay, Title VII

Electronic Data Involved: Email

Case Summary

Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Jun 18 2020

Key Insight: Cost shifting of the TAR costs to Plaintiff was warranted based on an analysis of the proportionality factors. Plaintiff was warned to narrow his discovery multiple times, continued to demand overbroad criteria for TAR, was aware of the potential costs of TAR, and was aware the discovery he sought led to largely non-responsive documents. Moreover, Defendant produced responsive documents by conducting its own search and production of documents outside of the TAR process.

Nature of Case: Breach of Contract, Non-Compete

Electronic Data Involved: Electronic Documents Generally

Case Summary

Javo Beverage Co. Inc. v. California Extraction Ventures, Inc. (S.D. Cal. 2020).

Apr 29 2020

Key Insight: The court granted defendant’s motion to compel production of filepath information, but allowed defendant to object to producing discrete filepath information if defendant can articulate a good faith basis for the objection, including irrelevance as to time or scope, or if the filepath data is misleading. If any filepath data is not readily accessible, the parties must confer and attempt to reach a cost-effective resolution prior to seeking the court’s involvement. The court also confirmed the parties’ mutual understanding that they are obligated to “preserve ephemeral, deleted, and other related kinds of data where counsel reasonably suspects such data is relevant” to the litigation.

Nature of Case: Trade secret misappropriation

Electronic Data Involved: ESI generally

Case Summary

Lundine v. Gates Corp. (D. Kan. 2020)

Mar 30 2020

Key Insight: Plaintiff moved to compel defendant to produce ESI of class-member pay data in Excel format or native format, or in the alternative, to allow her experts to access the data and download it. Defendant opposed the motion, asserting it had adequately responded by producing the data in PDF format. The court denied plaintiff’s motion. Neither party disputed that defendant produced the information in the form in which it is ordinarily maintained and the data in PDF form is still usable. “[R]equiring defendant to re-produce data in Excel format would be duplicative and unduly burdensome.”

Nature of Case: Wage and Hour Class Action

Electronic Data Involved: Payroll Data

Case Summary

Grande v. U.S. Bank National Association (W.D. Wash. 2020)

Feb 20 2020

Key Insight: The requested business guidelines were relevant. The scope of discovery is very broad. A request for discovery is relevant “unless it is clear that the information sought can have no possible bearing upon the subject matter of the action.”

The court declined to find the guidelines so confidential that they cannot be produced. Defendants did not move for a protective order nor did they provide any evidence of harm that would result from producing the guidelines.

Attorney fees were awarded to Plaintiff because Defendant caused substantial delay in responding to discovery despite Plaintiff’s multiple good faith attempts to obtain the requested discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Business Guidelines, Business Policies

Case Summary

Lawson v. Love’s Travel Stops & Country Stores, Inc. (M.D. Penn. 2020)

Feb 17 2020

Key Insight: The court denied Plaintiffs’ requests for additional text message discovery or the forensic imaging of cell phone data. The court emphasized the privacy implications of producing broad cell phone data, which often contain “the most intimate of persona details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.”

The court recognized “a more narrowly tailored request, supported by a more specific showing of relevance, might be appropriate.” The court directed the parties to work together to come to an agreement regarding the scope of a “carefully tailored, relevant search for such data.” Only if the parties cannot reach an agreement, would the court intercede.

Nature of Case: Fair Labor Standards Act, Employment Law

Electronic Data Involved: Text Messages, Cell Phone Data

Case Summary

Digital Mentor, Inc. v. Ovivo USA, LLC (W.D. Wash. 2020)

Feb 04 2020

Key Insight: The communications with Plaintiff’s consultant were not privileged because the consultant was not a “functional employee.” There is no evidence that the consultant had “information about the company that would assist the company’s attorneys in rendering legal advice.” Additionally, there was no evidence that consultant’s communications with counsel were primarily of a legal nature rather than a business one.

Defendant’s request for sanctions was premature. Rule 37 sanctions are only allowed against a party for disobeys a court issued discovery order. Additionally, no evidence was presented in support of Defendant’s spoliation theory other than a failure to produce documents to its subpoena. Without evidence regarding what was destroyed, when it occurred, the extent of Plaintiff’s involvement, and resulting prejudice, sanctions are inappropriate.

Nature of Case: Trademark Infringement, Breach of Contract

Electronic Data Involved: Email

Case Summary

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