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

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

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

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

State Farm Ins. Co. v. Policherla, 2009 WL 2170183 (E.D. Mich. July 20, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion to quash third party subpoena upon finding defendants? could claim no viable privacy interest and thus lacked standing and where plaintiff?s showing of relevance outweighed defendants? claims of harm; court granted plaintiff?s motion to compel claim related information, despite acknowledgement of defendants? burden, where plaintiff established the relevance of such data, but ordered a sampling of the requested data while reserving plaintiff?s prerogative to make a showing that additional disclosure would be productive

Nature of Case: RICO

Electronic Data Involved: ESI

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