FRCP 26(b)(2)(b) “Not Reasonably Accessible” – Page 3

Mazzei v. Money Store, —Fed. Appx.—, 2016 WL 3902256 (2d Cir. July 15, 2016)

Dec 01 2016

Key Insight: District court did not abuse discretion in declining to impose an adverse inference for failure to preserve ESI in an accessible format and instead awarding costs and attorneys fees where the at issue system “contained only ‘tangential information'” and where Plaintiff failed to seek discovery from other sources; Circuit court’s analysis noted recently amended Rule 37(e)’s required finding of intent to impose an adverse inference and that the District Court “specifically found that defendants did not act with such intent”

Nature of Case: Class action: breach of contract

Electronic Data Involved: ESI in third party custody but under control of defendants

Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Hausman v. Holland Amer. Line – USA, No. 13cv00937 BJR, 2016 WL 11234152

Dec 01 2015

Key Insight: Where Plaintiff sought to shift the costs of ?preparing emails for production? (estimated to be $16,325), the court reasoned that Plaintiff assumed the responsibility for producing relevant documents by initiating the litigation, that cost shifting is ?appropriate ?only when electronic data is relatively inaccessible?? (citing Zubulake v. Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003)), that ?[d]ata may be described as ?inaccessible? due to an undue cost or burden associated with accessing the data,? and concluded that the ?emails in this case [were] readily available? and that the high costs of production were not associated with ?accessing or delivering the emails? but rather with counsel?s review for privilege which was more like attorney?s fees and thus the court denied the motion

Nature of Case: Personal Injury

Electronic Data Involved: Emails

Good v. Am. Water Works Co., Inc., No. 2:14-1374, 2015 WL 1757978 (S.D. W. Va. Apr. 17, 2015)

Dec 01 2015

Key Insight: Where defendant objected to Plaintiffs? requests for production on grounds of relevance, but nevertheless produced the information in the format in which it was ordinarily maintained (Microsoft SQL Server format) and also provided Plaintiffs with the means to access the data in a ?parallel environment? and then later in an excel format for a limited period of time, indicating that the earlier periods of time were not reasonably accessible, and where Plaintiffs ultimately ?did not disagree? that the information was not as useful as they had thought, the court found the rest of the requested information (from the earlier time periods) was not reasonably accessible and that the burden of production outweighed its likely benefit and denied the motion to compel unless good cause could be shown

Electronic Data Involved: Archived ?SCADA? data from a Microsoft SQL Server format

Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)

Dec 01 2015

Key Insight: Court found privilege had been waived where at-issue documents were intermingled with non-privileged documents and produced in a consecutively numbered batch, where the government provided no information regarding how the documents were reviewed, where there was an almost 2 year delay until the production of the privilege log, where the documents were not marked as privileged, where approximately 10% (58/570) of the documents produced were privileged, where at least one privileged document was used as an exhibit in deposition without objection and where the government did not discover the allegedly inadvertent disclosure for nearly two years; where defendant provided evidence of the cost and burden of restoring backup tapes (14 weeks of work at a cost of approximately $85,400) court concluded that at-issue emails were not reasonably accessible and declined to compel production where plaintiff failed to establish that the emails may contain significant information

Electronic Data Involved: ESI, emails

Unichappel Music, Inc. v. Modrock Prods., LLC, No. 14-2382-DDP (PLA), 2015 WL 12697738 (C.D. Cal. Aug. 28, 2015)

Dec 01 2015

Key Insight: Where responding party asserted that an at-issue request would require production of ?voluminous? irrelevant documents, that identification of the requested documents would require searching through thousands of clients files estimated to take ?one or more persons weeks to accomplish? or would cost between $8740 – $18350 if a vendor was retained to assist – not including attorney review, and that the information was available through alternative means, including depositions, the court concluded that the documents were ?at least minimally relevant? but that the burden of FULL production outweighed the benefit to the requesting party and ordered the responding party to utilize search terms or to hire a vendor to produce a more limited set of documents as prescribed by the court; court declined to shift the costs of the search , reasoning (in footnote) that ?[t]he mere fact that responding to a discovery request will require the objecting party ?to expend considerable time, effort and expense consulting, reviewing and analyzing ?huge volumes of documents and information? is an insufficient basis to object? to a relevant discovery request.?

Electronic Data Involved: ESI

Bagely v. Yale University, —F. supp. 3d—, No. 3:13-CV-1890 CSH, 2015 WL 1897425 (D. Conn. Apr. 27, 2015)

Dec 01 2015

Key Insight: Court denied motion for protective order seeking permission to be excused from the obligation to conduct further discovery where, although defendant claimed that prior production efforts had resulted in a less than 8% responsiveness rate, the court reasoned that Rule 26(b)(2)(B) ?measures the phrase ?not reasonably accessible? by whether it exposes the responding party to ?undue cost.? Not some cost: undue cost . . .? and where the court reasoned that Plaintiff had, in any event, shown good cause for further discovery; court?s discussion provides good analysis of issues related to 26(b)(2)(B)

Nature of Case: Wrongful termination

Electronic Data Involved: ESI from agreed upon custodians

LBI, Inc. v. Sparks, No. KNLCV126018984S, 2015 WL 6144112 (Conn. Super. Ct. Sept. 18, 2015)

Dec 01 2015

Key Insight: Where Defendant sought to avoid production or allocate costs related to the production of allegedly inaccessible information based on the alleged cost and burdens related to processing and review but acknowledged that some of the ?raw data associated with the documents? was accessible, the court concluded that the affidavit from an attorney for the defendant?s counsel who had not ?attested to having a technical understanding of, or background in, electronically stored data? was not by itself ?enough evidence? to demonstrate that the at-issue ESI was not reasonably accessible and ordered defendant to submit additional evidence re: whether the information was stored in a ?readily usable format?

Nature of Case: Breach of contract, breach of duty of loyalty, misappropriation of trade secrets and tortious interference with a business relationship

Electronic Data Involved: ESI

Tyler v. City of San Diego, No. 14-cv-01179-GPC-JLB, 2015 WL 1955049 (S.D. Cal. Apr. 29, 2015)

Dec 01 2015

Key Insight: Court granted Plaintiffs? Motion to Compel documents where Defendant rejected Plaintiffs? proposed search terms and protocols, but did not use search terms and protocols it deemed reasonable to produce those documents that were readily accessible and admittedly relevant. Court also refused to limit the locations Defendant was required to search for relevant documents saying, ?The City is not excused from conducting a reasonable search for all non-privileged responsive documents in City?s custody and control, regardless of location.?

Nature of Case: Sexual Harassment

Electronic Data Involved: Database

Dekeyser v. Thyssenkrupp Waupaca Inc., No. 08-c-0488, 2015 WL 10937559 (E.D. Wis. Apr. 10, 2015)

Dec 01 2015

Key Insight: Where Defendant initially produced material safety data sheets in TIFF format and later in hard copy but Plaintiff complained they were ?extremely difficult? to utilize because of the number of duplicates, the ?absence of organization? and the small font size (despite having relied upon the productions for purposes of summary judgment), court was swayed by Plaintiff?s expert?s articulation regarding the lack of burden rather than Defendant?s vague attestations of the burden of reproduction and, reasoning that Plaintiff had not produced all of the information requested in its initial production (e.g., certain data fields from the database in which the material safety data sheets were maintained) and that the prior productions were in a form that degraded searchability, ordered reproduction of the requested information i.e., ?all data and information maintained in [Defendant?s] databases relating to the MSDS and all data inputted by [Defendant] concerning the same, in an electronic, organized and usable format.?

Nature of Case: FLSA

Electronic Data Involved: Contents of database

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