FRCP 26(b)(2)(C) Limitations – Page 8 – Electronic Discovery Law

In re Incretin Mimetics Prods. Liab. Litig., MDL Case No. 13md2452 AJB (MDD), 2014 WL 4987877 (S.D. Cal. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where defendants estimated that cost of production would be between $280,000 and $400,000, or even greater, court denied plaintiffs’ motion to compel production of adverse event source documents and databases, finding that the additional time and expense of identifying, redacting, and producing the source files outweighed the likely benefit resulting from evaluating source files for instances of mis-classification

Nature of Case: Products liability

Electronic Data Involved: Source documents underlying adverse event reports and adverse event databases

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

Chickadaunce v. Minott, No. 1:13-cv-01223-WTL-MJD, 2014 WL 4980547 (S.D. Ind. Oct. 6, 2014)

Dec 01 2014

Key Insight: Considering the totality of circumstances and balancing the highly relevant and probative value of the information sought with the slight burden to defendant of preparing a database of case files (estimated by defendant to be 15-20 hours), and taking into account society’s interest in furthering the truthseeking function in the case, court granted plaintiffs’ motion to compel and ordered defendants to produce database of electronic case files within 14 days

Nature of Case: Class of approximately 4,800 disabled individuals sued officials of Indiana Family & Social Services Administration alleging violations of Americans with Disabilities Act and other claims

Electronic Data Involved: Electronic case files of approximately 200 past and current class members

E.E.O.C. v. Forge Ind. Staffing, Inc., No. 1:14-mc-00090-SEB-MJD, 2014 WL 6673574 (S.D. Ind. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where former employee filed claim with EEOC alleging sexual harassment and retaliation, and EEOC issued a subpoena to employer staffing agency seeking information to determine how long the staffing agency had required applicants to waive statutorily protected statutes of limitations, court declined to enforce the subpoena, finding that the EEOC’s subpoena exceeded its authority in that the information sought went beyond the issues arising out of former employee?s individual charge; court further determined that the burden imposed on the staffing agency far exceeded the minimal relevance of the evidence sought, given that staffing agency processed 130,000 temporary employee applications during the time period covered by the subpoena, applications were not kept in a central repository or electronically, and compliance would require manual review of each employment application maintained in paper format at each of its ten office locations and would disrupt agency’s day-to-day operations

Nature of Case: Motion for enforcement of administrative subpoena issued to staffing agency relating to investigation of former employee’s claim of sexual harrassment and retaliation

Electronic Data Involved: Versions of employment application form used by staffing agency between January 1, 2012 and May 31, 2014, including all pages of and revisions to each form

In re Bridgepoint Educ., Inc., No. 12cv1737 JM (JLB), 2014 WL 3867495 (S.D. Cal. Aug. 6, 2014)

Dec 01 2014

Key Insight: Plaintiff sought to expand the scope of defendants? review and argued that defendants? alleged cost and burden would be lower than represented because defendants based their representations on manual review, rather than predictive coding. Defendants responded that manual review was still necessary where the predictive coding tool merely indicated a probability that a document was relevant and was not ?foolproof? – thus requiring the review. Relying on Rule 26(b)(2)(C), the court concluded that the additional discovery would be unduly burdensome and declined to grant Plaintiff?s request. The court also addressed Plaintiff?s request to require the defendants to run documents already produced through the predictive coding process. The court declined, reasoning that it had previously approved defendants? method of ?using linear screening with the aid of search terms? but, where defendant was willing to run additional terms, directed the parties to meet to discuss such terms.

Electronic Data Involved: ESI, email

Enargy Power (Shenzhen) Co. v. Xiaolong Wang, No. 13-11348-DJC, 2014 WL 4687542 (D. Mass. Sep. 17, 2014)

Dec 01 2014

Key Insight: Where defendants maintained hard copy business records that they produced electronically on CD-ROM, but did not make a sufficient showing that documents were produced as they were kept in the usual course of business since defendants provided no details regarding where and how documents were maintained, court ordered defendants to organize and label documents to correspond to the categories of documents requested by plaintiffs; court further ruled that defendants need not ?affirm that their document searches and productions are complete without qualification, or that no additional responsive documents exist,? but directed defendants, once they had completed their search and produced all documents they intended to produce, to confirm their efforts in locating responsive documents were complete and whether they were withholding any documents

Nature of Case: Violations of Computer Fraud & Abuse Act, conversion, misappropriation of trade secrets and breach of fiduciary duty

Electronic Data Involved: Hard copy documents scanned and produced on CD-ROM

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

In re: Cathode Ray Tube (CRT) Antitrust Litig., MDL No. 1917, 2014 WL 5462496 (N.D. Cal. Oct. 23, 2014)

Dec 01 2014

Key Insight: District court overruled defendant?s objections to magistrate judge’s report and recommendation and granted the direct action plaintiffs’ motion to compel production of documents located in France in accordance with the FRCP; court evaluated a series of factors in weighing whether foreign laws like the French Blocking Statute excused compliance with an American discovery request, and concluded that the relevant factors weighed in favor of permitting discovery to go forward in France pursuant to the FRCP; court dismissed defendant?s argument that it would be subject to criminal sanctions if it complied with discovery requests outside the Hague Convention process, observing that there was no realistic risk of prosecution under the French Blocking Statute

Nature of Case: Violations of U.S. antitrust laws

Electronic Data Involved: Documents held by a defendant in France that were relevant to such defendant’s communications with competitors, and documents produced to various foreign regulatory agencies during prior investigations related to price fixing in the CRT industry

Whiteamire Clinic, P.A., Inc. v. Quill Corp., No. 12 C 5490, 2013 WL 5348377 (N.D. Ill. Sept. 24, 2013)

Dec 01 2013

Key Insight: Where defendant sought to avoid production of ESI arguing that the retrieval of the requested information from its information systems would be unduly burdensome because of the manner in which the ESI was stored, the court noted that accepting such an explanation would create a ?perverse incentive? encouraging companies to store their data in a way that made it inaccessible except at great burden or cost and granted plaintiff?s motion to compel; court ordered defendant to produce an image of the hard drives of its four relevant information systems to Plaintiff?s expert who would retrieve the relevant information and provide it to defendant for review before production to the plaintiff; Plaintiff would bear the costs (voluntarily).

Nature of Case: Violation of Telephone Consumer Protection Act (sending of unwanted faxes)

Electronic Data Involved: ESI related to recipients of faxes

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