FRCP 26(b)(2)(b) “Not Reasonably Accessible” – Page 9

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

Union Ins. Co. v. Delta Casket Co. Inc., 06-2090, 2009 WL 10665127 (W.D. Tenn., Dec. 1, 2009)

Dec 01 2009

Key Insight: Court granted Plaintiff?s motion that Defendants bear the costs Plaintiff incurred in producing archived emails, implicated by Defendant?s 30(b)(6) notice. The notice came after a year and a half of discovery and one month before the discovery deadline. Plaintiff was required to use a third party to conduct the search, put the retrieved emails on discs, send them to a copy service to convert to TIFF files and print them so Plaintiff?s counsel could review for relevancy and privilege. Plaintiff spent approximately $35,000 on this process. The Court held that Plaintiff?s Motion was timely and Defendants had notice before the emails were produced that Plaintiff was seeking costs, Plaintiff met its burden of showing the cost and burden incurred were undue and conversion of the discs to TIFF format was necessary in order for Plaintiff?s counsel to review the emails prior to production.

Nature of Case: Insurance indemnification

Electronic Data Involved: Archived email

Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)

Dec 01 2009

Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, database information, back up tapes

Said Zaid v. Obama, 616 F.Supp.2d 119 (D.D.C. 2009)

Dec 01 2009

Key Insight: Where respondents argued that the exculpatory information sought was not ?reasonably available? under the relevant section of the case management order because several separate searches would be required in order to access all relevant databases, court stated that respondents appeared to misinterpret the relevant section to require production of ?easily available? information rather than ?reasonably available? information and granted petitioner?s motion to enforce the case management order and to allow searching of the relevant databases pursuant thereto

Electronic Data Involved: Database information accessed through Intellink search tool

Dilley v. Metro. Life Ins., Co., 256 F.R.D. 643 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Upon finding that because of the ?relative inaccessibility of the information sought?responding to the request would be overly burdensome? where defendant was unable to query its database for the information requested and upon finding that the information sought would not satisfy plaintiff?s purpose without additional information, court found that defendant had established that ?the significance of the discovery to the issues in the present case is substantially outweighed by the burden? and granted defendant?s motion for a protective order

Nature of Case: Wrongful denial of claim for disability benefits

Electronic Data Involved: Database contents

Dahl v. Bain Capital Partners, LLC 2009 WL 1748526 (D. Mass. June 22, 2009)

Dec 01 2009

Key Insight: Briefly but comprehensively addressing a number of electronic discovery issues, court declined to shift discovery costs to the requesting party, declined to order defendants to bear the cost of changing the format of their responsive documents for production (unless such conversion was necessary to render the documents ?usable?), declined to order the production of all metadata and instead limited production to 12 fields of metadata proposed by plaintiffs, and ordered the production of spreadsheets and privilege logs in native format

Electronic Data Involved: ESI, metadata

Flying J. Inc. v. Pilot Travel Ctrs. LLC, 2009 WL 1834998 (D. Utah June 25, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion to compel production of transaction data and rejected plaintiffs? arguments that defendants should be required to make a reciprocal production and that absent such reciprocity plaintiffs? production would be unduly burdensome; court found defendant?s request for use of additional search terms to identify responsive emails was not unduly burdensome where defendant was added to litigation late and where plaintiffs therefore assumed the risk of increased costs in light of expanded claims

Electronic Data Involved: Transaction data, emails

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