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

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

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”