FRCP 26(b)(2)(C) Limitations – Page 6 – Electronic Discovery Law

Zeller v. S. Cent. Emergency Med. Servs., No. 1:13-CV-2584, 2014 WL 2094340 (M.D. Pa. May 20, 2014)

Dec 01 2014

Key Insight: Court ruled that plaintiff was entitled to a “first review” of results of independent forensic examination of plaintiff’s email account, and that plaintiff and defendants would share equally in cost of restoring and searching plaintiff’s emails, up to a maximum contribution by plaintiff of $1,500

Nature of Case: Family and Medical Leave Act claims

Electronic Data Involved: Plaintiff’s emails

TVIIM, LLC v. McAfee, Inc., No. 13-cv-04545-VC (KAW), 2014 WL 5280966 (N.D. Cal. Oct. 15, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part plaintiff?s request to compel defendant to produce emails employing particular keywords in Boolean search of five identified custodians, stating that defendant need not run two of the requested searches because they used truncated versions of defendant?s product names — something that was prohibited by the parties? ESI Order barring use of indiscriminate terms, such as the producing company?s name or its product name, unless combined with narrowing search criteria to reduce risk of overproduction; as to third requested search, magistrate judge ordered parties to confer to identify keywords that would remove ?out of office? and other automatic responses from the results, and ordered defendant to produce emails within seven days of parties? agreement

Nature of Case: Patent infringement

Electronic Data Involved: Email

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production

Nature of Case: Breach of fiduciary duties, negligence

Electronic Data Involved: ESI

Klayman v. City Pages, No. 5:13-cv-143-Oc-22PRL, 2014 WL 5426515 (M.D. Fla. Oct. 22, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion to compel given broad scope of the requests and plaintiff’s limited showing as to relevance, and defendants’ representation that they had produced all the materials upon which they relied in writing the subject publications; court further denied request for appointment of third party to conduct forensic examination of defendants’ work and personal computers, telephone records and cell phone records, finding that plaintiff’s conclusory and speculative assertions that defendants were concealing evidence were inadequate to meet his burden of showing good cause for such an invasive computer examination

Nature of Case: Defamation claims based on statements made in three newspaper articles

Electronic Data Involved: ESI

Cochran v. Caldera Med., Inc., No. 12-5109, 2014 WL 1608664 (E.D. Pa. Apr. 22, 2014)

Dec 01 2014

Key Insight: In case where defendant represented that it was currently defending approximately 1,709 claims nationwide involving its various products, and that it had limited financial resources, court denied defendant’s request that plaintiffs share in the cost of producing documents and ESI as defendant did not demonstrate that ESI sought by plaintiffs was inaccessible; court further noted that, given the importance of the discovery requests to plaintiffs’ ability to prove their claims, and the seriousness of the injuries alleged by plaintiffs, the burden or expense of the discovery requests was outweighed by the likely benefit to plaintiffs

Nature of Case: Product liability re implantable surgical meshes

Electronic Data Involved: ESI, text messages, voicemail messages

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317 EJD (HRL), 2014 WL 4088201 (N.D. Cal. Aug. 19, 2014)

Dec 01 2014

Key Insight: Among other rulings on the parties? respective discovery motions, the court: (1) denied plaintiff?s request for an order compelling defendants to produce document retention policies and litigation hold notices issued in the case, because litigation hold notice was protected as attorney-client communication and/or work product and burden of producing requested material, however minimal, outweighed its likely benefit; court noted that plaintiff waited over one year to follow up on particular request, relevance of material to case merits was dubious, and timing of motion following court?s finding that plaintiff had committed spoliation by failing to timely file its litigation hold suggested that plaintiff?s motivation was retaliatory; and (2) denying plaintiff?s request for source code and documents related to newest version of accused product, which version was still in development, since discovery into such material would be premature because an incomplete, non-?live? product cannot be evaluated for infringement in patent litigation

Nature of Case: Patent infringement

Electronic Data Involved: ESI, litigation hold notice, source code

In re Uehling, No. 1:14-mc-00009-LJO-BAM, 2014 WL 1577459 (E.D. Cal. Apr. 17, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion to compel nonparty to answer deposition questions and produce documents, finding that nonparty’s burden of producing copy of external hard drive containing 9.47 gigabytes of information was substantial as the material would need to be reviewed for privilege and for potential redaction and withholding based on confidentiality, privacy and proprietary information purposes, the benefit of the documents to defendant was “minimal,” and defendant had an alternative source for the information sought (i.e., the plaintiff)

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Hard drive that non-party witness provided to DOJ in the course of the DOJ’s investigation of plaintiff

Executive Mgmt. Servs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2014 WL 5529895 (S.D. Ind. Nov. 3, 2014)

Dec 01 2014

Key Insight: Granting in part plaintiff’s motion to compel, court rejected defendant’s assertion of irrelevance and its conclusory assertions of burdensomeness, finding that defendant had failed to “show with specificity” that plaintiff’s requests were overly burdensome and noting that defendant’s contentions would have more force if defendant had provided an estimate of the cost or hours involved in searching, compiling, and producing the requested information; addressing the discovery of ESI ?more directly,? court ordered defendant to file a disclosure stating the names of all custodians whose ESI was searched, the scope of the ESI searched, date ranges searched for each custodian and specific search terms used, and also provide such information for any additional custodians whose ESI would be searched in light the withdrawal of defendant?s objections; plaintiff was then required, within seven days, to propose a list of additional custodians and scope of ESI, date ranges and specific search terms for such custodians, following which the parties should endeavor to reach agreement regarding the scope of additional e-discovery

Nature of Case: Claims for breach of implied duty of good faith and fair dealing and breach of fiduciary duty

Electronic Data Involved: ESI

Sprint Commc?ns Co., L.P. v. Comcast Cable Commc?ns, LLC, Nos. 11-2684-JWL, 11-2685-JWL, 11-2686-JWL, 2014 WL 1794552 (D. Kan. May 6, 2014)

Dec 01 2014

Key Insight: Evaluating parties’ competing discovery protocols, court noted that defendants had not asked Sprint to collect documents from 60+ custodians, but, rather, faced with Sprint?s failure to identify potential custodians in violation of the agreed discovery order, defendants started suggesting people and asked Sprint either to search those individuals? files or explain why production from particular custodians on list was not necessary; court disapproved of Sprint?s continued failure to work with defendants to reach a reasonable solution, rejected as ?clearly unreasonable? Sprint?s proposal to collect responsive documents from only 12 new custodians, and ordered Sprint to sit down with defendants in a good faith attempt to resolve the issue; court further ordered Sprint to include in its document searches a ?human review? of hard copy documents

Nature of Case: Consolidated cases involving patent infringement claims

Electronic Data Involved: ESI; documents produced in prior litigations; metadata

In re Autohop Litig., No. 12-CV-4155 (LTS)(KNF), 2014 WL 5591047 (S.D.N.Y. Nov. 4, 2014)

Dec 01 2014

Key Insight: Magistrate judge granted in part and denied in part defendant’s motion to compel, agreeing with plaintiff that particular document request was overly broad, unduly burdensome, and incomprehensively vague, and concluding that enormous burden and expense that would incurred by plaintiff to access and process the requested data outweighed any benefit defendant might gain; court further noted that the request violated agreement reflected in parties’ Joint Electronic Discovery Submission that they would not be required to search for “other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business”

Nature of Case: Declaratory action with counterclaims for copyright violations, breach of contract and fraud

Electronic Data Involved: Internal communications, viewership tracking data

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