Proportionality – Page 17 – Electronic Discovery Law

Boyington v Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813 (W.D. Pa. Oct. 14, 2016)

Dec 01 2016

Key Insight: Plaintiffs sought to compel production of all emails sent to or from any of the Plaintiffs through a Percheron account. The Court found the emails were relevant because they may shed light on informal work policies, hours worked, and serve as a potential cross-reference to the other records kept by Defendant. Analyzing proportionality, the Court concluded that the importance of the issues (to the Plaintiffs), the amount in controversy (alleged to be ?in excess of several million dollars?), the resources of the parties, the parties? relative access to the information and the importance of the discovery in resolving the issues weighed in favor of Plaintiffs/production. Regarding whether the burden of discovery outweighed the benefit, the Court acknowledged Defendant?s claim that the review ?would likely cost $735,000-$798,964 and take a team of 20 attorneys 12 weeks to complete,? but reasoned that the Court?s refusal to compel production of certain email categories would lessen the estimated costs and that Defendant?s inability to provide certain data had caused Plaintiffs to have to ?puzzle together damages? and concluded that the request did not ?run afoul? of proportionality. The court also relied on Defendants prior agreement to produce the emails. Addressing Plaintiffs? motion to compel information regarding Defendant?s preservation efforts, the court ordered production of the names of those that received litigation holds and related information, but declined to order the litigation holds themselves.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Emails, Information re: litigation hold notices

Kissing Camels Surgery Center, LLC v. Centura Health Corp., No. 12-cv-03012-WJM-NYW, 2016 WL 277721 (D. Colo. Jan. 22, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs objected to Defendants? ?duplicative? requests and claimed they had already produced responsive documents but provided Defendants with no guidance as to where such documents could be found within the voluminous production, the court acknowledged that it would ?ordinarily? conclude that Plaintiffs had no obligation to identify responsive documents but, citing the volume of data at issue, the ?asymmetry of information regarding the production between Plaintiffs,? the time the case had been pending, and the fact that additional discovery would be required, the court concluded that Plaintiff should provide additional information and ordered that Defendants would be permitted to identify ten categories of requested documents that Plaintiffs claimed to be duplicative and that Plaintiffs must then identify documents responsive to those requests

Electronic Data Involved: ESI

Meyers v. Nicolet Rest. Of De Pere, LLC, No. 15-C-444, 2016 WL 1275046 (E.D. Wis. Apr. 1, 2016)

Dec 01 2016

Key Insight: Court declined to compel production of Plaintiff?s computer or to allow a third party to conduct an examination where Defendant?s request was ?not calculated to produce information relevant to Defendant?s arguments or the proportional needs of the case? and where the court reasoned that even if Defendant found what it was looking for, it would not change its legal position

Nature of Case: Fair and Accurate Credit Transactions Act

Electronic Data Involved: Computer (for inspection)

Westmoreland v. Wells Fargo Bank Nw., N.A., No. 1:15-cv-00312-CWD, 2016 WL 6471433 (D. Idaho Oct. 31, 2016)

Dec 01 2016

Key Insight: Defendant sought to compel the return of Plaintiff?s company-issued laptop in order to obtain its contents; production of all emails sent by Plaintiff?s counsel to a joint email account shared by Plaintiff and her husband; as well as an additional search of Plaintiff?s Facebook account. Because it became clear that neither party had accessed the laptop during the litigation but that both parties were interested in its contents, the Court ordered that imaging and retrieval would be conducted by an agreed upon third party but, recognizing Defendant?s security concerns, allowed a representative to be present for the process. The Court denied Defendant?s motion to compel production of emails that Plaintiff?s counsel sent to a joint email account accessible by both Plaintiff and her husband, indicating that Defendant had not shown that Plaintiff waived attorney-client privilege regarding the communications with her counsel by having the emails sent to a shared email account and citing marital privilege. The Court denied the motion requesting a third search of Plaintiff?s Facebook messages, indicating that the messages produced to date were satisfactory and that the time and cost of an additional search was not ?proportional to the needs of this litigation.?

Nature of Case: Employment discrimination

Electronic Data Involved: Company-issued laptop, emails, social media (social network)

In re Ex Parte Application of Global Energy Horizons Ltd., No. 14-3180, 2016 WL 1657889 (3d Cir. Apr. 26, 2016)

Dec 01 2016

Key Insight: Third Circuit affirmed denial of Global Energy Horizon?s motion to compel reasoning that the District Court was ?on firm ground? in determining the burden imposed upon the non-party would ?likely have been intrusive and burdensome in violation of Rule 45 despite Global?s offer to pay for reasonable cost? where responding to the subpoena seeking ?all communications between [the non-party?s] 400 to 450 employees? and another entity and any financial documents relating to certain technology would require that each employee be interviewed and their hard drives be copied and reasoning that the District Court was reasonable in deciding not to modify the subpoena where the non-party had already ?spent thousands of dollars and substantial time? responding to prior requests; Circuit Court also affirmed lower court?s finding that non-party was under no duty to preserve emails where the record ?did not lead the court to conclude? that the non-party ?should have known that litigation was imminent? and ?Global never sought a litigation hold on [the non-party?s] electronically stored information?

Electronic Data Involved: ESI

Carlson v. Jarousek, No. 2-15-1248, 20167243557 (Ill. App. Ct. Dec. 21, 2016)

Dec 01 2016

Key Insight: In personal injury case, the trial court abused its discretion by ordering forensic imaging of ALL of Plaintiff?s devices, including his work computer which was owned by his employer, where, among other things, the appellate court determined that such a request ran ?counter to the traditional protocol of discovery, in which one party requests specific information and the other party searches its own files (and computers) to identify and produce responsive information?; where the computer was not directly involved in the cause of action; where there was no evidence of prior discovery violations; and where ?careful consideration of relevance and proportionality reveal[ed] that forensic imaging was not justified in this case? including because there were ?ample? alternative avenues for discovery (e.g, requests for admission, depositions) and because much of the information sought fell within the categories of ESI identified in Illinois to be presumptively not discoverable; the court also addressed Plaintiff?s privacy concerns

Nature of Case: Personal injury (appeal)

Electronic Data Involved: Forensic imaging of computers (including work computer)

MP Nexlevel of California, Inc. v. CVIN LLC, No. 1:14-cv-00288-LJO-EPG, 2016 WL 1408459 (E.D. Cal. April 11, 2016)

Dec 01 2016

Key Insight: Court found that the at-issue discovery was not required under Fed. R. Civ. P. 26(b)(1) and declined to compel production of every document ?referring or relating? to Plaintiff?s ?designated Responsible Managing Employee? for all 11 of Plaintiff?s California projects where the court determined that the relevance was minimal, where both parties ?appeared to agree? that the request would require ?a search for every document to or from [the employee]? and Plaintiff alleged that many documents were not electronically searchable, and where the court recognized that ordering such production could cause a ?chilling effect? that may ?discourage [construction] companies from filing a lawsuit merely to avoid the discovery costs?

Electronic Data Involved: ESI and other records “referring or relating” to specified employee

Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088 (RMB)(HBP), 2016 WL 616386 (S.D.N.Y. Feb. 2, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel a response to his second set of document requests (consisting of 168 pages and 1,027 individual requests), noting several procedural and ?substantive defects,? including that Plaintiff?s requests were ?grossly irrelevant? and sought ?numerous documents that ha[d] nothing to do with the claims or defenses? and disproportional to the case (citing Defendant?s prior production of approximately 1,000 pages of documents), even despite the ?strong federal policy against employment discrimination?; addressing defendant?s motion for sanctions, court concluded that ?Plaintiff?s Second Document Request was unquestionably prepared and served in bad faith and in a conscious effort to impose an unreasonable burden on defendants? and cited Plaintiff?s numerous document requests, violation of two prior discovery orders and other ?obstructive behavior? and granted a protective order relieving defendant of the obligation to respond and ordered that Plaintiff was prohibited from offering or using any document not already produced, that Plaintiff must submit to a medical exam (as was previously ordered) or suffer dismissal of his case, and that Plaintiff would be liable for the attorneys fees incurred by Defendants in addressing the motions resolved in this opinion

Nature of Case: Employment litigation (Title VII, Age Discrimination, ADA, etc.)

Electronic Data Involved: ESI

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)

Dec 01 2016

Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?

Nature of Case: Trademark infringement

Electronic Data Involved: Customer service emails, call recordings

FTC v. Directv, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 3351945 (N.D. Cal. June 9, 2016)

Dec 01 2016

Key Insight: Following the parties? court-ordered meet and confer to achieve proportionality in Defendant?s requests for production of complaints from FTC customers regarding Defendant?s competitors, Defendant reduced the number of competitors about which it sought information from 10 to 3, but court also approved Plaintiff?s proposal to produce only a random sampling, even from the reduced list of competitors, where the proposal ?more closely comport[ed] with Rule 26?s demand for proportionality? noting that the relevance of the at-issue materials was ?largely speculative?

Electronic Data Involved: Customer complaints submitted to FTC re: Defendant’s competitors

Tag:Proportionality