FRCP 26(b)(2)(C) Limitations – Page 5 – Electronic Discovery Law

Bagely v. Yale University, —F. supp. 3d—, No. 3:13-CV-1890 CSH, 2015 WL 1897425 (D. Conn. Apr. 27, 2015)

Dec 01 2015

Key Insight: Court denied motion for protective order seeking permission to be excused from the obligation to conduct further discovery where, although defendant claimed that prior production efforts had resulted in a less than 8% responsiveness rate, the court reasoned that Rule 26(b)(2)(B) ?measures the phrase ?not reasonably accessible? by whether it exposes the responding party to ?undue cost.? Not some cost: undue cost . . .? and where the court reasoned that Plaintiff had, in any event, shown good cause for further discovery; court?s discussion provides good analysis of issues related to 26(b)(2)(B)

Nature of Case: Wrongful termination

Electronic Data Involved: ESI from agreed upon custodians

State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., No. 4:14-CV-11521, 2015 WL 4094115 (E.D. Mich. July 7, 2015)

Dec 01 2015

Key Insight: Court granted motion to compel and rejected objections based on burden where Defendants offered no evidence in support of the alleged claims of burden nor ?any specificity regarding the approximate cost of production?

Nature of Case: Fraud

Electronic Data Involved: ESI

US ex rel Oughatiyan v. IPC The Hospitalist Co., Inc., No. 09 C 5418, 2015 WL 4249195 (N.D. Ill. July 14, 2015)

Dec 01 2015

Key Insight: Court addressed motion to compel nationwide discovery in action for fraudulent billing of Medicare and Medicaid but, considering the ?scope of discovery expressed in Rule 26(b)(1) along with the principle of proportionality implicit in Rule 26(b)(2)(C)(iii)? limited initial phase of discovery to the seven states regarding which ?factual allegations? had been alleged in the complaint, recognizing that ?staged discovery [was] the way to move discovery forward,? and indicated that the motion would be denied without prejudice

Nature of Case: False Claims Act

Electronic Data Involved: ESI records from nationwide locations

Artt v. Orange Lake Country Club Realty, Inc., No. 6:14-cv-956-Orl-40TBS, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015)

Dec 01 2015

Key Insight: In FLSA case seeking compensation for ?off the clock? work, court found that defendant?s request for any social media activity posted between 7AM and 7PM on any date between June 19, 2011 and Plaintiff?s termination was ?on its face overbroad, unduly burdensome and unreasonable?

Nature of Case: FLSA

Electronic Data Involved: Social media

City of Sterling Heights Gen. Emps.? Ret. Sys. V. Prudential Fin., Inc., No. 12-05275(MCA)(LDW), 2015 WL 5055241 (D.N.J. Aug. 21, 2015)

Dec 01 2015

Key Insight: Citing its broad discretion to manage discovery and the limitations posed by Rule 26(b)(2)(C), court granted in part and denied in part Plaintiffs? motion to compel Defendant to identify additional custodians and utilize additional search terms and ordered that Plaintiffs would be allowed to choose up to 10 additional custodians and that Defendant must apply the four disputed search terms proposed by Plaintiffs

Nature of Case: Securities Class Action

Electronic Data Involved: ESI

Webb v. Ethicon Endo-Surgery, Inc., No. 13-1947(JRT/JJK), 2015 WL 317215 (D. Minn. Jan. 26, 2015)

Dec 01 2015

Key Insight: Court overruled parties’ objections to Magistrate Judge’s order addressing scope of discovery where underlying court properly considered and applied the principle of proportionality; addressing defendant’s alleged costs of production, court reasoned in part that ?The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?

Nature of Case: Products liability

Electronic Data Involved: ESI

Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 WL 7158212 (W.D. Wash. Nov. 13, 2015)

Dec 01 2015

Key Insight: Court denied motion to compel Defendant to search for documents from non-U.S. points of sale where the court found such documents would be of ?marginal relevance at best? and that the burden and expense of production outweighed the benefit, noting that such production would ?vastly expand? an already voluminous production, would entail additional translation costs, and would ?potentially require the involvement of additional entities or foreign law??; court also declined to compel Defendant to conduct searches of Account Representatives for 170 different airlines where Plaintiff failed to establish that the expanded search would reveal additional relevant information and noting that the productions of third party air carriers had not revealed any ?glaring deficiencies? in Defendant?s production

Nature of Case: Class action

Electronic Data Involved: ESI

Siriano v. Goodman Mfg. Co., L.P., No. 2:14-cv-1131, 2015 WL 8259548 (S.D. Ohio Dec. 9, 2015)

Dec 01 2015

Key Insight: Applying the proportionality factors in Rule 26(b)(1) (including specific contemplation of Defendants? ?corporate resources? and the ?potentially very large? amount in controversy) and reasoning that the Sixth Circuit has held that ?limiting the scope of discovery is appropriate when compliance ?would prove unduly burdensome,? not merely time-consuming or expensive? and that Defendants failed to propose an alternative method of discovery ?enabling some lesser degree of production,? the court directed the parties to cooperate and indicated it would schedule a conference to discuss ?whether and to what extent discovery should proceed in phases?

Nature of Case: Putative class action re: design or manufacturing defect

Electronic Data Involved: ESI

Shipley v. Forest Labs., No. 1:06-cv-00048-TC-DBP, 2014 WL 4270939 (D. Utah Aug. 29, 2014)

Dec 01 2014

Key Insight: Stating it could not speculate about defendant’s claimed burden given lack of any details, court granted in part plaintiff’s motion to compel and ordered defendant to run a preliminary search of custodial files belonging to particular sales representatives using search terms and time limits set forth in Case Profile Form, and to submit a certification to the court describing the volume of responsive documents and the approximate cost defendant would incur in running a full search through its vendor and through privilege review; once the court received the certification, it would determine whether the burden of producing such custodial documents outweighed the benefit of production

Nature of Case: Products liability wrongful death action

Electronic Data Involved: ESI

BLX Commercial Capital, LLC v. Bilco Tools, Inc., No. 14-0306, 2014 WL 6684929 (E.D. La. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where defendants requested emails from six employees and all emails regarding liquidation and appraisal of Bilco, and request was further narrowed by the use of eight search terms, plaintiff?s counsel was unable to articulate a specific reason why emails were not relevant and represented to the court that he had not actually reviewed any of the emails at issue to determine their relevancy, court denied plaintiff?s motion for protective order and granted defendants? motion to compel production of emails

Nature of Case: Breach of loan agreement

Electronic Data Involved: Email of current and former BLX employees

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