FRCP 26(b)(2)(C) Limitations – Page 9 – Electronic Discovery Law

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Fed. Deposit Ins. Co. v. Brudnicki, No. 5:12-cv-00398-RS-GRJ, 2013 WL 2948098 (N.D. Fla. June 14, 2013)

Dec 01 2013

Key Insight: Where discovery would be asymmetrical and Plaintiff would be producing the majority of documents in the case, court approved a protocol that would require the parties to cooperate to develop search terms to identify potentially relevant documents to be uploaded to a database for Defendant?s review for the purpose of identifying documents to be produced and which would require Defendant to pay $.06 per page produced and $225 monthly for each gigabyte uploaded into the database; court held cost-shifting was appropriate where Plaintiff had already identified and collected the potentially responsive information at great expense and compared the $.06 charge to photocopying costs in traditional discovery and also cited and considered the factors of Rule 26(b)(2)(C), which provide authority for cost shifting and ?strongly supported? the Plaintiff?s proposed ESI protocol

Nature of Case: Action against Bank’s former directors for negligence and gross negligence related to approval of 11 transactions

Electronic Data Involved: ESI in FDIC database

Jewell v. Aaron?s Inc., No. 1:12-CV-05630-AT, 2013 WL 3770837 (N.D. Ga. July 19, 2013)

Dec 01 2013

Key Insight: Court declined to approve Defendant?s discovery request for 87 opt-in Plaintiffs to produce all content of websites, blogs, or social media sites posted by them during work hours for a four year period where Defendant failed to make a ?sufficient predicate? showing that the information sought was reasonably calculated to lead to the discovery of admissible evidence and where the request was overly burdensome in light of the ?remote relevance of the information? sought

Nature of Case: Collective Action

Electronic Data Involved: Contents of websites, blogs, social media (e.g., Facebook) posted by Plaintiffs during work hours for a four year period

Soffer v. Five Mile Capital Partners, LLC, No. 2:12-cv-01407-JAD-GWF, 2013 WL 4499011 (D. Nev. Aug. 19, 2013)

Dec 01 2013

Key Insight: Court indicated that dispute over whether to compel Defendants to conduct additional searches in an expanded date range turned on Rule 26(b)(2)(C)(iii) and the question of whether the burden outweighed the likely benefit but, citing Plaintiff?s prior offer to more narrowly tailor the search terms to be utilized and to contribute to the reasonable costs of Defendants? review, ordered the parties to meet to attempt to reach agreement on a more focused search and to negotiate a reasonable cost sharing agreement and indicated that the court would consider shifting ?an appropriate share of the costs of production? once a determination of the cost was made

Nature of Case: Interference with a contract and prospective economic advantage, fraud, breach of fiduciary duty

Electronic Data Involved: ESI

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

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

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2013 WL 6094600 (D. Minn. Nov. 20, 2013)

Dec 01 2013

Key Insight: District court affirmed in part magistrate judge?s order (at 2013 WL 5687559) denying plaintiff?s request for forensic examination of laptop computers used by plaintiff during her employment, as defendant produced 56,625 pages of documents from most recently used laptop, and burden and expense of forensic examination of previous laptop outweighed its likely benefit, given that plaintiff did not assert even a belief that relevant information existed on that computer that was not produced from other sources; court reversed in part magistrate judge?s order denying access to text and voice messages, finding that plaintiff demonstrated that ?the scale tips in her favor? in regard to two mobile phones provided by defendant to plaintiff and another witness for work-related purposes, and ordering parties to meet and confer upon protocol to be used in conducting search for responsive text messages and voice messages contained on the two devices

Nature of Case: Employment discrimination

Electronic Data Involved: Work laptops, and text messages and voice messages on certain mobile devices

Brown v. West Corp., No. 8:11CV284, 2013 WL 6263632 (D. Neb. Dec. 4, 2013)

Dec 01 2013

Key Insight: Court denied motion for spoliation sanctions related to automatic deletion of email backups where no email from the time of Plaintiff?s separation from the defendant existed on that system because of the passage of time and where the automatic deletions did not affect any emails saved on individual employees? computers – who had been instructed to preserve relevant information; court also declined to impose sanctions for the destruction of files on former employees? computers where Defendant claimed the computers contained no relevant information that had not already been produced and where the repurposing of the computers was apparently undertaken in good faith; upholding magistrate judge?s prior discovery orders, court noted the magistrate judge?s recognition that although some of the custodians from which plaintiff sought discovery may have relevant information, ?a few pointed questions in a deposition were less burdensome than grasping at the periphery by reviewing thousands or tens of thousands of e-mails in the hope of discovering a limited number of interactions that might, together, indicate something about whether discrimination played a role in the actions at the center of this case?

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, email, computer files of former employees

Westdale Recap Props., Ltd. v. NP/I & G Wakefield Commons, LLC, No. 5:11-CV-659-D, 2013 WL 5424844 (E.D.N.C. Sep. 26, 2013)

Dec 01 2013

Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege

Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation

Electronic Data Involved: ESI

W. Penn. Elec. Employees Pension Fund v. Alter, No. 2:09-cv-04730-CMR, 2013 WL 4803564 (E.D. Pa. June 26, 2013), approved and adopted in substantial part, 2013 WL 4799061 (E.D. Pa. Sep. 6, 2013)

Dec 01 2013

Key Insight: In this Report and Amended Recommended Order, Special Discovery Master agreed with plaintiffs that they should have the opportunity to confirm, though inspection by neutral e-discovery vendor already retained by parties, defense counsel?s representations as to contents of individual defendant?s belatedly-disclosed hard drive, because without the requested examination, there was no way to know if, in fact, hard drive contents were duplicative of data already produced by another party as the individual defendant claimed; Special Master found request was not unreasonable given the centrality of the defendant in events giving rise to the lawsuit, the unsubstantiated nature of defense counsel?s claim that the data was duplicative, that the defendant had provided only limited discovery to plaintiffs, that the defendant, through his counsel, had previously denied possession of any responsive data when the hard drive had been in his home and responsive documents were on his personal computer, much time and money had been expended in the effort to obtain the documents from other sources, and plaintiffs should not be expected to accept without question the claim that the defendant ?simply forgot? he had received company documents prior to his departure; district court subsequently adopted recommendation but modified deadlines and division of costs

Nature of Case: Securities class action

Electronic Data Involved: Material on hard drive belatedly disclosed by individual defendant

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