FRCP 26(b)(2)(C) Limitations – Page 13 – Electronic Discovery Law

Graff v. Haverhill N. Coke Co., No. 1:09-cv-670, 2011 WL 1630045 (S.D. Ohio Mar. 24, 2011)

Dec 01 2011

Key Insight: Where, by comparing the time taken to respond to other requests, defendant established that responding to the requests at issue would be unduly burdensome (requiring an estimated 1,000 to 1,600 hours) and where plaintiff failed to provide ?any particular showing ? of the benefit to be obtained from such information?, the court denied plaintiff?s motion to compel

Electronic Data Involved: ESI, email

Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2011 WL 2297661 (D. Colo. June 9, 2011)

Dec 01 2011

Key Insight: Court denied request for taxation of costs related to conversion of documents into electronic format for discovery purposes where defendant failed to establish that the conversion costs were ?necessarily incurred in the case preparation?; court denied motion for taxation of costs related to creation of secure database in furtherance of responding to a legitimate discovery request where the court was not authorized to award such costs pursuant to the relevant statute and where it was unaware of authority allowing adjustments to the division of costs based on undue burden, an argument that was available ?during the discovery process?

Electronic Data Involved: Conversion of ESI

Murphy v. Target Corp., No. 09cv1436-BEN (WMc), 2011 WL 2728217 (S.D. Cal. July 12, 2011)

Dec 01 2011

Key Insight: Where target indicated the requested discovery would require the expenditure of approximately 146 hours of employees? time and cost $4,360 and also argued that the requested discovery would invade employees? privacy and was minimally relevant, court found that the burden to Target did not outweigh the likely benefit, rejected defendant?s arguments regarding privacy and relevance, and granted plaintiff?s motion to compel

Nature of Case: Employment Litigation

Electronic Data Involved: ESI

Madere v. Compass Bank, No. A-10-CV-812 LY, 2011 WL 5155643 (W.D. Tex. Oct. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel production of email requiring restoration of backup tapes where defendant?s expert averred that it would cost over $270,000 and require hundreds of hours to accomplish, where plaintiff?s expert could not ?ascertain an estimate for the actual cost,? and where ?even if the actual cost of restoring the backup tapes was only a fraction? of the estimated amount, it ?would still outweigh the amount [Plaintiff] seeks to recover?

Nature of Case: Violation of FMLA

Electronic Data Involved: Emails on backup tapes

Greater Lakes Ambulatory Surgical Ctr., PLLC v. State Farm Mut. Ins. Co., No. 11-11003, 2011 WL 5245141 (E.D. Mich. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where defendant indicated that the requested records were not readily searchable because the information sought was not tracked, that compliance with plaintiffs? request would require manual review of ?hundreds of thousands of claims,? that the claim files were not stored as searchable images, and that the cost of reviewing the claim files could eclipse $100,000, the court concluded that defendant had demonstrated undue burden and denied plaintiffs? motion to compel; court also indicated that plaintiffs could have pursued alternative avenues of discovery where defendant indicated that a third party maintained the information requested but failed to do so and that defendant should not be ?required to engage in labor and resource intensive discovery . . . merely because Plaintiff?s failed to subpoena a third-party . . . .?

Nature of Case: Suit arising from Defendant’s refusal to pay certain charges for services provided to insured

Electronic Data Involved: ESI

United States v. AT&T, Inc., No. 1:11-cv-01560, 2011 WL 5347178 (D.D.C. Nov. 6, 2011)

Dec 01 2011

Key Insight: Court denied non-party?s motion to quash defendant?s subpoena where defendant adequately narrowed its request and where the non-party failed to establish that the burden of responding was undue, including by failing to provide particulars related to the expected burden of responding; court?s analysis closely followed standard set forth in Rule 26(b)(2)(C)(iii)

Nature of Case: DOJ investigation

Electronic Data Involved: ESI

In re Google Litig., No. C 08-03172 RMW (PSG), 2011 WL 6113000 (N.D. Cal. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where third party objected to plaintiff?s subpoena as overly broad and burdensome but nevertheless undertook a limited search which resulted in the identification of zero documents, but where plaintiff argued the search was halfhearted and that additional searching was required, the court took notice of objective of the recently adopted Model Order on E-Discovery in Patent Cases and indicated its applicability to third parties and thereafter ordered plaintiff to provide the non-party with five search terms to be utilized in additional searching and that plaintiff would bear the costs of any terms beyond the limits agreed to by the parties or granted by the court

Nature of Case: Patent infringement

Electronic Data Involved: ESI

In re Nat?l Assoc. of Music Merchs., Musical Instruments & Equip. Antitrust Litig., MDL No. 2121, 2011 WL 6372826 (S.D. Cal. Dec. 19, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel defendant to re-run searches using commonly used acronyms where defendant had already run search terms that had been agreed upon by the parties and plaintiff had ample opportunity to ask for the abbreviations to be used and where the court determined that he burden of re-searching outweighed the benefit; where plaintiff was willing to bear the cost of ?running the searches and conducting the review in their request,? however, court would permit further search of specified custodians for one specifically identified acronym

Nature of Case: Antitrust

Electronic Data Involved: ESI

Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)

Dec 01 2011

Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose

Nature of Case: Patent infringement

Electronic Data Involved: Emails

United States v. Halliburton, Co., 272 F.R.D. 235 (D.D.C. 2011)

Dec 01 2011

Key Insight: Court declined to compel defendants to conduct additional searching where defendants established the significant efforts already undertaken to locate and produce responsive materials and where plaintiff made ?no showing whatsoever . . . that those emails not produced will make the existence of some crucial facts more likely than not?, the court concluded that ?the search relator demands cannot possibly be justified when one balances its cost against its utility.?; court went on to establish that the inability to find certain information, despite a duty to preserve, did not negate the ability of a party to rely on Rule 26(b)(2)(C) to argue against additional searching

Nature of Case: Fraud

Electronic Data Involved: Additional searching for ESI

Tag:FRCP 26(b)(2)(C) Limitations