FRCP 26(b)(1) Scope in General (effective Dec. 1, 2015)

Consultus, LLC v. CPC Commodities (W.D. Mo. 2022)

Feb 04 2022

Key Insight: Plaintiffs argue that defendants’ claims of privilege should be overruled due to the crime-fraud exception. Defendants withheld emails claiming work product and attorney-client privilege. Plaintiffs have not argued that the emails are not covered by either the work product doctrine or the attorney-client privilege. The purpose of the crime-fraud exception is to assure that the “seal of secrecy” between lawyer and client does not extend to communications “made for the purpose of getting advice for the commission of a fraud or crime.” In order to avail itself of the crime-fraud exception, the party seeking disclosure must satisfy a threshold showing of “a factual basis adequate to support a good faith belief by a reasonable person that the [party asserting the privilege] was engaged in intentional fraud and communicated with counsel in furtherance of the fraud.” The court found that plaintiffs’ assertions do not satisfy the threshold showing as they amount to conjecture since there is no other evidence that the communications were made in furtherance of a crime or fraud.

Nature of Case: Antitrust

Electronic Data Involved: Emails

Case Summary

America West Bank Members v. State of Utah (D. Utah 2021)

Nov 10 2021

Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have been responsive if those emails were still available, the identification of documents or categories of documents no longer available, and an explanation as to why other responsive documents were not produced. The court granted plaintiff’s request but found it “strictly limited to the purged former employee email accounts.” No additional depositions were permitted and plaintiff’s fourteen interrogatories on this topic were “neither reasonable nor proportional” to the limited nature of the discovery needed.

Nature of Case: Civil rights

Electronic Data Involved: Email and documents

Case Summary

Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)

Key Insight:

Plaintiff’s Motion to Compel sought missing documents and communications from, and the correction of metadata “issues” from Defendant and its parent company (via third party subpoena), and sought an award of attorney’s fees and costs. The Court partially granted the Motion, requiring Defendant to produce responsive communications and documents in its possession, and to conduct a search for such documents and communications, and provide an affidavit detailing the steps it took to search for said items.

The Court granted Plaintiff’s Motion to Compel insofar as it sought the metadata of documents responsive to its initial requests for production. Regarding the third party subpoena to Defendant’s parent company, the Court found that the office of the parent company subject to the subpoena was outside of the Court’s jurisdiction and consequently, denied Plaintiff’s Motion insofar as it sought to enforce the subpoena. Finally, Court awarded Plaintiff fees and costs regarding the missing documents, but not the “issues” with metadata.

Nature of Case: Breach of Contract

Electronic Data Involved: Emails, Metadata, PDFs

Case Summary

Am. Mun. Power, Inc. v. Voith Hydro, Inc., No. 2:17-cv-00708 -ALM-EPD (S.D. Ohio June 4, 2018)

Dec 01 2018

Key Insight: Which search terms are to be used to identify responsive ESI

Nature of Case: Construction litigation

Electronic Data Involved: Email and other ESI

View Case Opinion

Motorola Solutions, Inc. v. Hytera Communications Corp., No. 1:17-cv-01973 (N.D. Ill. May 17, 2018)

Dec 01 2018

Key Insight: Discovery should be proportional and limited to the issue

Nature of Case: Intellectual Property (trade secrets)

Electronic Data Involved: All electronic data

View Case Opinion

The Physicians Alliance Corporation v. Wellcare Health Insurance of Arizona, Inc, et al., No. 3:16-cv-00203-SDD-RLB (M.D. La. Feb. 27, 2018)

Dec 01 2018

Key Insight: Discovery costs must be proportional to the amount in controversy ($20 million in dispute allows for at least $13,000 in discovery costs)

Nature of Case: Contract breach

Electronic Data Involved: Electronic documents/communications

Brand Servs., LLC v. Irex Corp., NO: 15-5712, 2017 WL 67517 (E.D. La. Jan. 5, 2017)

Dec 01 2017

Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.

Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act

Electronic Data Involved: ESI

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William C. Blosser v. Ashcroft, Inc., No. C17-5243-BHS, 2017 WL 4168502 (W.D. Wash. Sept. 19, 2017)

Dec 01 2017

Key Insight: Where Defendant contended there was only one way to search the at-issue database but failed to explain why and where Plaintiffs noted Defendant?s failure to offer reasons why optical character recognition could not be used on the database, the court ?agree[d],? reasoning that parties might otherwise be encouraged to ?maintain inaccessible databases to limit their discovery obligations? and noted that Defendant may need to consult a third party vendor if necessary and ordered the parties to meet and confer regarding the issue

Nature of Case: Asbestos exposure liability

Electronic Data Involved: Database

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Bratcher v. Navient Sols., Inc., 249 F.Supp.3d 1283 (M.D. Fla. 2017)

Dec 01 2017

Key Insight: Where defendant sought to examine plaintiff?s smartphone itself for the purpose of obtaining a log of blocked calls arguing that ?plaintiff is not entitled to recovery for any blocked calls,? the court noted that defendant had failed to provide legal basis for this position and that ?[T]here is no routine right of direct access to a party?s electronic information system. … absent a factual finding of some non-compliance with [the] discovery rules, direct access is unwarranted.? The court further noted that defendant made no effort to comply with the requirement for a proposal for the protection of privacy rights, the protection of privileged information, and the separation of irrelevant information during inspection. On this basis, the court found direct access to the cell phone unwarranted and denied defendant?s motion to compel.

Nature of Case: Telephone Consumer Protection Act

Electronic Data Involved: Cell Phone Call Block Records

Youngevity Int’l Corp. v. Smith, No. 16-cv-704-BTM-JLB (S.D. Cal. Dec. 21, 2017)

Dec 01 2017

Key Insight: 4.2 million pages of keyword “”hit”” documents produced without review, but designated “”Attorney Eyes Only.

Nature of Case: unfair competition

Electronic Data Involved: 4.2 million pages of keyword “”hit”” documents

View Case Opinion

Tag:FRCP 26(b)(1) Scope in General (effective Dec. 1, 2015)