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

Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., No. 09 C 3789, 2011 WL 1897213 (N.D. Ill. May 17, 2011)

Dec 01 2011

Key Insight: Where plaintiff sought reimbursement of the costs of producing ESI from backup tapes but did not seek judicial intervention to narrow the requests prior to production, court considered eight factors and ruled that plaintiff and defendants should split the costs; the eight factors considered were: 1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8) the relative benefits to the parties of obtaining the information.

Nature of Case: Legal malpractice

Electronic Data Involved: ESI on backup tapes

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

Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721 (D. Colo. Feb. 8, 2010)

Dec 01 2010

Key Insight: Where defendants bore the burden of persuasion when asserting that ESI was inaccessible because of undue burden or cost and where defendants? supported their claim of inaccessibility with only one declaration which lacked specific information regarding defendants? storage practices, the number of back-up or archival systems that would need to be searched, or defendants? capability to retrieve information from those back-up or archival systems, the court denied defendants? Motion for a Protective Order

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition, unjust enrichment and fraud

Electronic Data Involved: ESI

Universal Del., Inc. v. Comdata Corp., 2010 WL 1381225 (E.D. Pa. Mar. 31, 2010)

Dec 01 2010

Key Insight: Where third-party (and former defendant) signed stipulation to preserve and produce ESI as if still a party to the litigation and later sought reimbursement for the review and production of data in a particular database, court ordered a database be created comprised of the four custodians at issue, that plaintiff pay $4085 to the vendor as a ?start-up fee? (pursuant to their agreement to do so), and that plaintiff and third-party split the remaining costs of creating the database, but ordered third-party to bear the costs of its own review prior to production

Nature of Case: Antitrist litigation

Electronic Data Involved: Database

Nissan N.Am., Inc. v. Johnson Elec. N. Am., Inc., 2010 WL 1790354 (E.D. Mich. May 5, 2010)

Dec 01 2010

Key Insight: Upon defendant?s motion to compel pursuant to Fed. R. Civ. P. 26(b)(2)(B), court ordered plaintiff to supplement its discovery to specifically identify sources of ESI claimed to be ?not reasonably accessible? and to provide the anticipated costs and efforts involved in retrieving that ESI

Nature of Case: Defective design of air conditioner components leading to recall

Electronic Data Involved: Not reasonably accessible ESI

Phillip M. Adams & Assoc., LLC v. Fujitsu Ltd., 2010 WL 1901776 (D. Utah May 10, 2010)

Dec 01 2010

Key Insight: Addressing a number of issues related to the format and organization of plaintiff?s production and a motion to compel plaintiff?s response to interrogatories, court ordered the production of ESI in its native format where plaintiff failed to object to a request for the same but, where native production was not specified, plaintiff was allowed to select the form of production; unable to determine whether the burden of production of computer data from all computers used by plaintiff over a period of many years would outweigh the value of production, court ordered plaintiff to produce a detailed inventory of each computer and to allow sampling of one or two computers of defendant?s choice in order to determine the need for additional discovery

Nature of Case: Patent infringement

Electronic Data Involved: ESI, hard drives

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

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