FRCP 26(b)(2)(b) “Not Reasonably Accessible” – Page 8

IWOI, LLC v. Monaco Coach Corp., No. 07-3453, 2011 WL 2038714 (N.D. Ill. May 24, 2011)

Dec 01 2011

Key Insight: Where defendant failed to conduct a sufficient search for responsive information and where an important email was located only upon a forensic search of defendant?s computer system after plaintiff offered to bear the costs, court ordered that half of the costs of the search be shifted to defendant

Nature of Case: Breach of warranty and violations of certain state law proscriptions against consumer fraud in connection with sale of motorcoach

Electronic Data Involved: Email

B&B Hardware, Inc. v. Fastenal Co., No. 4:10CV00317 BRW/JTR, 2011 WL 2115546 (E.D. Ark. May 25, 2011)

Dec 01 2011

Key Insight: Addressing discovery issues ?looming on the horizon? court indicated that there appeared to be no basis to require defendant to forensically image at-issue hard drives and, addressing whether defendant would be required to restore and review backup tapes which it claimed could cost $84,854,704. 90 (a number the court called ?absurdly high? on its face), found that it would be difficult for plaintiff to meet the seven factor test for good cause and that defendant had sufficiently objected to plaintiff?s request such that arguments that the backup tapes were not reasonably accessible had not been waived

Electronic Data Involved: Forensic image of hard drives, backup tapes

Brokaw v. Davol, Inc., Nos. PC 07-5058, PC 07-4048, PC 07-1706, 2011 WL 579039 (R.I. Super. Ct. Feb. 15, 2011)

Dec 01 2011

Key Insight: Court found backup tapes not reasonably accessible in light of the cost of restoration, review and production but granted plaintiff?s motion to compel where plaintiff?s showed ?good cause for some discovery? and held the motion in abeyance until further argument on cost-shifting

Nature of Case: Products liability

Electronic Data Involved: Backup tapes

General Steel Domestic Sales, LLC v. Chumley, No. 10-cv-01398-PAB-KLM, 2011 WL 2415715 (D. Colo. June 15, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel production of plaintiff?s audio calls where plaintiff asserted that defendant?s claims were ?thin? and did not specify any damages and where in light of this, plaintiff asserted that the burden of producing the requested audio recordings outweighed any potential benefit; plaintiff supported its assertions that the audio recordings were ?not reasonably accessible? with affidavits indicating the high volume of calls to review, the need to listen to each call to determine its responsiveness, the incredible time and financial costs of such a review, and the possibility that privileged calls were present in the mix such that a third party could not be relied on to assist

Nature of Case: False and misleading advertising, deceptive sales practices

Electronic Data Involved: Audio recordings of phone calls

Maggette v. BL Dev. Corp., 2010 WL 2010816 (N.D. Miss. May 17, 2010)

Dec 01 2010

Key Insight: For defendant?s egregious discovery violations uncovered with the assistance of a special master, including failing to adequately search for responsive materials and lying to the court about such searching and other, related topics, court indicated likelihood that it would find as a matter of law that an agency relationship existed between the offending defendant and another entity implicated in the underlying accident claims but, recognizing that ?responsibility for punishing BL for its discovery violations lies with the court, rather than the jury? declined to order an adverse inference and instead set the matter for hearing where proper sanctions and the egregious conduct of counsel would be discussed before a final determination was made

Nature of Case: Claims arising from bus accident

Electronic Data Involved: ESI, hard copy

Martinez-Hernandez v. Butterball LLC, 2010 2089251 (E.D.N.C. May 21, 2010)

Dec 01 2010

Key Insight: Where plaintiff?s search requests were unreasonable and unduly burdensome and where defendant?s proposed ESI search could ?be reasonably expanded to search for relevant information without becoming unduly burdensome?, court ordered the parties to continue negotiating to identify 25 agreed upon search terms to search relevant custodians? reasonably accessible data; court found backup tapes ?not readily accessible because of undue burden or cost? and ordered defendant to run the agreed upon search terms ?only on reasonably accessible sources, such as active and archived data of network computers?

Nature of Case: Class action

Electronic Data Involved: ESI

Universal Del. v. Comdata Corp., 2010 WL 2330284 (E.D. Pa. June 4, 2010)

Dec 01 2010

Key Insight: Defendant?s motion for a protective order precluding compliance with plaintiff?s? subpoena duces tecum was denied where defendant failed to establish the irrelevance of the data sought and failed to establish the unduly burdensome nature of producing the information requested or to assert that the information was not reasonably accessible and where the court determined that an existing protective order was sufficient to protect any confidential information produced

Nature of Case: Antitrust litigation

Electronic Data Involved: Emails, ESI, hard copy

Garcia v. Tyson Foods, Inc., 2010 WL 5392660 (D. Kan. Dec. 21, 2010)

Dec 01 2010

Key Insight: Court denied plaintiffs? motion to compel additional searching and to restore back up tapes where the court determined that plaintiffs? motion was untimely in light of their knowledge of the relevant facts (namely defendants? intention to search the hard drives of a limited number of custodians and not everyone listed on their litigation hold notice and their assertion that backup tapes were inaccessible) and failure to move to compel within the court-established deadline for such motions and where plaintiffs failed to establish good cause to justify the belated filing; court also noted plaintiffs? failure to show a likelihood that additional searching would result in the discovery of additional responsive emails

Nature of Case: Class action employment/wage litigation

Electronic Data Involved: Emails, backup tapes

Johnson v. Neiman, 2010 WL 4065368 (E.D. Mo. Oct. 18, 2010)

Dec 01 2010

Key Insight: Court granted defendants? motion for a protective order precluding their obligation to produce evidence contained only on backup tapes where defendants made a sufficient showing of the burden to do so in terms of both money and time and where plaintiff was unable to establish good cause to compel the production; court found it ?most significant? that plaintiff had ?no idea what, if any? discoverable information could be obtained by the restoration and search of the tapes

Electronic Data Involved: Emails stored on backup tapes

Colony Ins. Co. v. Danley, Inc., 2010 WL 3894203 (D. Me. Oct. 4, 2010)

Dec 01 2010

Key Insight: Where defendants? counsel refused to electronically search its files for potentially responsive information, the court found the data ?not reasonably accessible? and denied plaintiffs? motion to compel the search where defendants? counsel had already spent 30 hours searching and had produced or logged the documents discovered in that search, and where plaintiffs? offered ?no reason to believe that further responsive documents exists or, if any do, that they are not cumulative??; ?alternatively? court denied the motion ?pursuant to 26(b)(2)(c)? where ?the burden ? of the proposed discovery outweighs its likely benefit?

Electronic Data Involved: Electronic contents of files of defendants’ counsel

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