FRCP 26(b)(2)(C) Limitations – Page 7 – Electronic Discovery Law

Palma v. Metro PCS Wireless, Inc., 18 F.Supp.3d 1346 (M.D. Fla. 2014)

Dec 01 2014

Key Insight: Observing that, generally, social media content is neither privileged nor protected by any right of privacy, nevertheless, a defendant does not have a generalized right to rummage at will through information that plaintiff has limited from public view, court denied defendant?s motion to compel, questioning the relevance of the material sought and finding that ?the burden of requiring all of the opt-in Plaintiffs to review all of their postings on potentially multiple social media sites over a period of four years and determine which posts relate to their job, hours worked, or this case, would be an ?extremely onerous and time-consuming task’?

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Posts to social media accounts and private messages sent from social media sites

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12-2071, 2014 WL 295053 (E.D. La. Jan 27, 2014)

Dec 01 2014

Key Insight: Court rejected plaintiff’s complaints regarding format of defendant’s production of documents, because plaintiff failed to make any Rule 34(b)(2)(B) ESI specification in its discovery requests and defendant’s production of scanned images on OCR readable disc was a reasonably usable form; court ordered defendant to explain its document naming and numbering system to the extent it had not already done so, but denied any additional logistical relief, stating: ?Whatever burden XL and its counsel face in reviewing these materials that they themselves have requested is rightfully borne by them.?

Nature of Case: Insurance coverage

Electronic Data Involved: Database of more than 808,000 documents consisting of more than four million pages

Kinetic Concepts, Inc. v. Wake Forest Univ. Health Sciences, No. SA-11-CV-163-XR, 2014 WL 1787813 (W.D. Tex. May 5, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order barring defendants from obtaining CEO’s e-mails during discovery, finding that CEO had potentially relevant information that defendants might not be able to obtain from other custodians and that CEO’s high level role did not make discovery of his e-mails any more or less burdensome than producing e-mails of other executives

Nature of Case: Patent infringement

Electronic Data Involved: E-mail of CEO who joined plaintiff after lawsuit was filed

Baker v. Bayer Healthcare Pharm., Inc., No. 13-cv-00490-THE (KAW), 2014 WL 5513854 (N.D. Cal. Oct. 31, 2014)

Dec 01 2014

Key Insight: Finding that sales call notes that plaintiff sought, as opposed to only those concerning plaintiff’s healthcare provider, were relevant, but agreeing that producing all sales call notes for tens of thousands of healthcare providers was unduly burdensome and disproportionate to the needs of this single-plaintiff case, court sought to strike a balance between plaintiff’s entitlement to information relevant to her claims and need to ease defendant’s burden of production, and ordered production of sales call notes that had already been produced in related multidistrict litigation involving over 1,500 plaintiffs; court noted that production in related MDL was limited to the plaintiffs? specific prescribing physicians but that the volume that production would yield would give plaintiff a substantial cross-section of sales call notes without burdening defendant with production of sales call notes for every physician in every market in which the device was promoted

Nature of Case: Single-plaintiff products liability lawsuit

Electronic Data Involved: Databases containing sales call notes from conversations between defendant’s sales representatives and healthcare providers

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

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