Key Insight: ESI does not need to be produced if it is from sources not reasonably accessible on account of undue burden or cost.
Nature of Case: medical fees
Electronic Data Involved: medicare documents, etc
Keywords: undue burden, not reasonably accessible, third party requests
Key Insight: Court found requested data was relevant to class certification but, where Defendant indicated that Plaintiff?s requests ?encompass [ ] tens of millions of transactions and weekly data for each of the more than 6 million merchants that accept American Express? that ?is scattered over at least 6 databases at American Express,? court agreed with Defendant that the requested discovery created an ?enormous burden? and therefore ordered sampling, in a size to be agreed upon by the parties at a court-ordered meet and confer
Nature of Case: class action
Electronic Data Involved: Chargeback-related data (ESI)
Key Insight: Plaintiff also sought production of all emails between 8 named individuals dating from August 1, 2013 to the present (December 2016). The court found the scope of this request (lacking any search terms or subject matter restrictions) was too burdensome when weighed against the potential benefit of production. Plaintiff narrowed her request to docs that related to her and limited the date range during oral argument, however the court found that this was still too broad and too close to the close of discovery to be permitted. Furthermore, Defendant had already produced emails relating to Plaintiff from most of the 8 custodians and had written to Plaintiff suggesting she propose search terms if she sought additional discovery. Plaintiff?s counsel, whose representation started after Defendant?s letter to Plaintiff, did not review Defendant?s earlier discovery responses and waited 10 months before requesting the additional discovery (using the overbroad parameters). The court denied Plaintiffs request except for certain documents referenced in depositions that were not produced. The court also denied Plaintiffs overly broad request for ?all documents pertaining to policies, procedures, and guidelines related to Defendant?s computers, computer systems, electronic data and electronic media? as too burdensome.
Nature of Case: Motion to Compel in employment discrimination action
Electronic Data Involved: ESI
Key Insight: In this case, the court granted Plaintiff?s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions ?because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.? In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to ?hide as much as they dare.? The court further reasoned that Defendants did not assert any privilege or provide a ?compelling reason? for their ?extensive? redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it ?[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds? and granted Plaintiff?s motion to compel
Electronic Data Involved: ESI
Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.
Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act
Electronic Data Involved: ESI
Key Insight: Where Defendant contended there was only one way to search the at-issue database but failed to explain why and where Plaintiffs noted Defendant?s failure to offer reasons why optical character recognition could not be used on the database, the court ?agree[d],? reasoning that parties might otherwise be encouraged to ?maintain inaccessible databases to limit their discovery obligations? and noted that Defendant may need to consult a third party vendor if necessary and ordered the parties to meet and confer regarding the issue
Nature of Case: Asbestos exposure liability
Electronic Data Involved: Database
Key Insight: statute of limitations, proportionality
Nature of Case: copyright infringement
Electronic Data Involved: financial information
Keywords: meeting of the minds, statute of limitations, undue burden, amount in controversy
Key Insight: Court had permitted Defendants to select an additional 16 custodians and 12 additional search terms. Plaintiff moved for reconsideration being concerned about amount that would be produced. Court denied reconsideration, urged cooperation and clarified that earlier limits on discovery applied to new materials as well.
Nature of Case: Fraud
Electronic Data Involved: E-mails, Documents
Keywords: search terms; cooperation; additional custodians; additional terms
Key Insight: Method of production requiring out-of state travel not contract breach and retention of counsel not enough to show material is privileged
Nature of Case: breach of contract, consumer protection act litigation
Electronic Data Involved: audit documents
Keywords: proportionality, foreign parent, method of production, privilege determination
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