FRCP 26(b)(2)(C) Limitations – Page 17 – Electronic Discovery Law

Covad Commc?n Co. v. Revonet, Inc., 267 F.R.D. 14(D.D.C. 2010)

Dec 01 2010

Key Insight: Court declined to compel production of non-email ESI in native format where defendant previously produced the information sought in hard copy, reasoning that native production is not required by the rules and that the documents, previously produced in hard copy, were in a sufficiently usable format absent a showing that the metadata would ?yield an answer that the hard copy will not?; court also recognized obligation to seek ?just, speedy, and inexpensive? adjudication and to limit burdensome discovery where defendant represented significant hardship to re-produce in native format

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: ESI

Hunsaker v. Proctor & Gamble Mfg. Co., 2010 WL 5463244 (D. Kan. Dec. 29, 2010)

Dec 01 2010

Key Insight: Where defendant sought leave to serve a subpoena upon a public library seeking information related to plaintiff?s internet use to confirm his alleged job seeking activities, the court found the subpoena overly broad on its face and found that even a more limited subpoena would impose a burden and expense outweighed by the likely benefit; court found proposed subpoenas to internet job search sites (e.g. Monster) would result in an undue burden in light of the expansive definition of document, but that defendant would be allowed to serve the subpoenas if the list of ?definitions? was removed

Nature of Case: Violations of ADEA and ADA

Electronic Data Involved: ESI related to online job searches

In re Subpoena to Wisconsin Energy Corp., 2010 WL 715429 (E.D. Wis. Feb. 24, 2010)

Dec 01 2010

Key Insight: Court quashed non-party subpoena upon finding it unduly burdensome where non-party estimated the cost of compliance in excess of $1,000,000 and argued that the information sought was irrelevant and cumulative of information available to the plaintiff from an alternative source

Electronic Data Involved: Stochastic modeling reports

In re Zurn Plex Plumbing Prods. Liab. Litig., 2009 WL 1606653 (D. Minn. June 5, 2009)

Dec 01 2009

Key Insight: Where defendants objected to plaintiffs’ motion to compel arguing the requested search of emails and various computer drives would be unduly burdensome, court dismissed attorney?s affidavit in support of such objections as ?not compelling evidence? where attorney was not ?an expert on document search and retrieval? but, ?in an effort to control costs,? limited defendants? search to particular locations and ordered the use of 14 terms as supplied by the court or agreed upon by the parties; court invited defendants to renew their objections if the search nonetheless proved overly burdensome by submitting evidence, including evidence from ?computer experts,? in support of those objections

Nature of Case: Claims that defendants’ choice of plumbing fittings caused damage to plaintiffs’ property

Electronic Data Involved: ESI

In re: Application of Operadora DB Mexico, S.A. De C.V., 2009 2435750 (M.D. Fla. May 28, 2009)

Dec 01 2009

Key Insight: Where non-party to international arbitration sought to quash subpoena on grounds including the undue burden of searching for and producing electronic discovery, magistrate judge recommended that electronic data previously produced by non-party in prior litigation should be produced but that the parties should meet and confer regarding the production of additional data and should specifically address including: the medium on which the data was stored, the volume of data, the practicability of searching the data, and the likely costs associated with production

Nature of Case: International arbitration over franchise rights in Mexico

Electronic Data Involved: ESI

A.N.S.W.E.R. Coalition v. Salazar, 2009 WL 1703232 (D.D.C. June 18, 2009)

Dec 01 2009

Key Insight: ?Unconvinced? that defendants had not unduly limited the scope of their search for responsive documents, court ordered additional searching but limited the scope of plaintiff?s proposed terms and parameters and ordered the parties to meet and confer regarding: an agreeable search methodology consistent with the court?s opinion, the identification of potentially responsive databases and custodians likely to maintain relevant information, and ?a list of search directives? likely to result in the identification of relevant documents

Nature of Case: Constitutional claims

Electronic Data Involved: ESI

Unishippers Global Logistics, LLC v. DHL Express (USA), Inc., 2009 WL 3297817 (D. Utah Oct. 12, 2009)

Dec 01 2009

Key Insight: Where defendant refused to search custodians? user files, network drives, and individual hard drives for responsive ESI but agreed to search custodians? emails and ?all electronic files that are known to contain non-duplicative information? and where defendant provided plaintiff with affidavit evidence of the unlikelihood of discovering relevant non-duplicative evidence in non-email sources, court denied plaintiff?s motion to compel ?unless and until? plaintiff could provide ?some reasonable basis? to require defendant to image and search all electronic files

Nature of Case: Breach of contract

Electronic Data Involved: Non-email ESI

Negotiated Data Solutions, LLC v. Dell, Inc., 2009 WL 733876 (N.D. Cal. Mar. 17, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s motion to compel production of third party?s ESI where the court found the data relevant and not duplicative or obtainable through other sources and where the court found the protective order in place (and the court?s invitation to seek additional protection if necessary) provided appropriate protection of the third party?s information

Nature of Case: Patent infringement

Electronic Data Involved: Third party’s ESI, source code

Whitlow v. Martin, 2009 WL 3381013 (C.D. Ill. Oct. 15, 2009)

Dec 01 2009

Key Insight: Where third-party presented evidence that responding to subpoena would require searching hundreds of locations, would require the restoration of back up tapes, and would take ?over two years to accomplish and cost hundreds of thousands of dollars,? court modified subpoena to narrow scope of the request, but ordered production of relevant documents, ?even if they [were] not reasonably accessible?

Nature of Case: Allegations of wrongful termination in furtherance of political scheme

Electronic Data Involved: ESI

Lapin v. Goldman Sachs & Co., 2009 WL 222788 (S.D.N.Y. Jan. 23, 2009)

Dec 01 2009

Key Insight: Where defendants previously produced documents to regulators without any limitations as to subject matter, court ordered parties in present litigation to meet for at least four hours to discuss search terms intended to identify the relevant documents for production to plaintiff from amongst those already produced; where plaintiff sought documents beyond those previously produced to regulators, court found the request likely more burdensome than beneficial and ordered plaintiff to articulate need for additional documents and to consider compromises to avoid burden and expense

Nature of Case: Securities violations

Electronic Data Involved: ESI

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