FRCP 26(b)(2)(b) “Not Reasonably Accessible” – Page 11

AIU Ins. Co. v. TIG Ins. Co., 2008 WL 5062030 (S.D.N.Y. Nov. 25, 2008)

Dec 01 2008

Key Insight: Court granted motion to compel additional electronic searching as to certain custodians where defendant established their potential relevance and where plaintiff failed to establish additional search would be unduly burdensome or that custodians had no relevance to litigation; court noted that plaintiff?s assertions that documents referencing custodians at issue were drafted before the popularization of email does not excuse obligation to search for potentially relevant materials even where the search may be ?fruitless?

Nature of Case: Breach of reinsurance contracts

Electronic Data Involved: ESI, email of particular custodians

Brokaw v. Salt Lake County, 2008 WL 5449065 (D. Utah Dec. 30, 2008)

Dec 01 2008

Key Insight: Despite court?s acknowledgment of the requested data?s relevance, plaintiff?s offer to provide a technical expert to perform the search, and plaintiff?s proffer of at least three alternative search protocols, court denied plaintiff?s motion to compel a school district to search for specified terms in the databases of all its schools where court found that the proposed discovery imposed an excessive burden due to the district?s lack of technical resources and where plaintiff?s proposals failed to sufficiently lessen that burden

Nature of Case: Complaint alleges unreasonable seizure of high school student and use of excessive force resulting in permanent injuries

Electronic Data Involved: Computer databases at all school’s in district

Flying J, Inc. v. TA Operating Corp., 2008 WL 5449714 (D. Utah Dec. 31, 2008)

Dec 01 2008

Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order

Nature of Case: Unlawful conspiracy to prevent and suppress competition

Electronic Data Involved: ESI on back up tapes

Superior Prod. P?ship d/b/a/ PBSI v. Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D. Ohio Dec. 2, 2008)

Dec 01 2008

Key Insight: Court ordered electronically stored documents produced in native format in light of preference for such production in Rule 26 and where no obstacles to production were articulated; where plaintiff requested production of large volume of relevant documents and where deposition witness indicated that the information would be easily retrieved from defendant?s electronic database, court recognized potential burden to defendant and ordered production of sampling of documents to allow for determination of the need to produce the rest; court also ordered parties to meet and confer regarding the necessary volume of production of documents related to cost where documents were necessary to address the accuracy of previously produced summary and thus production of all such documents was not required, where information was available in electronic format, though, defendants were ordered to produce it

Nature of Case: Predatory pricing

Electronic Data Involved: ESI

Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008)

Dec 01 2008

Key Insight: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email and other ESI

Overlap Inc. v. Alliance Bernstein Invs., Inc., 2008 WL 5780994 (W.D. Mo. Dec. 29, 2008)

Dec 01 2008

Key Insight: Court found defendant failed to establish burden of proving ESI was not reasonably accessible where testimony established the relevant computer system could b searched in-house with ?minimal? time spent and ordered defendant to search for and produce the information requested and to bear the associated costs; court ordered search of backup tapes without deciding the issue of reasonable accessibility where plaintiff established ?good cause? for why the tapes should be searched and ordered defendants to search for and produce the information requested and to bear the associated costs

Nature of Case: Breach of contract/warranty

Electronic Data Involved: ESI

U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)

Dec 01 2008

Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner

Nature of Case: Breach of contract, account stated, open account, and unjust enrichment

Electronic Data Involved: Computer hard drives of plaintiff’s employees

Margel v. E.G.L. Gem Lab Ltd., 2008 WL 2224288 (S.D.N.Y. May 29, 2008)

Dec 01 2008

Key Insight: Where information maintained in electronic database was necessarily in a form that was not identical to report prepared on basis of that data and produced in discovery, and defendant did not claim that database was “not reasonably accessible,” court ordered defendant to produce or make otherwise available that part of electronic database that evidenced the issuance of certificates during relevant time frame

Nature of Case: Action among gem grading laboratories concerning the right to use certain trademarks in the U.S. and the right to issue grading certificates bearing those marks

Electronic Data Involved: Database containing information used to prepare report produced by defendant in discovery

Ex Parte Vulcan Materials Co., 2008 WL 1838309 (Ala. Apr. 25, 2008)

Dec 01 2008

Key Insight: Adopting the same approach as that in Ex parte Cooper Tire & Rubber Co., 2007 WL 3121813 (Ala. Oct. 26, 2007), Alabama Supreme Court directed trial court to reconsider Vulcan?s motion for a protective order as to emails sought in light of FRCP 26(b)(2)(B) and Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) and in light of Vulcan?s arguments that the requested emails likely constitute work product and would not likely lead to relevant information

Nature of Case: Company petitioned for writ of mandamus seeking review of trial court?s order on post-trial discovery related to motion for remittitur of punitive damages awarded in underlying action for breach of contract, tortious interference with contractual relations, and civil conspiracy

Electronic Data Involved: Email

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Tag:FRCP 26(b)(2)(b) “Not Reasonably Accessible”