Key Insight: Production of an plaintiff employee’s own entire email box of 13 years is overbroad and not proportional
Nature of Case: Employment discrimination, whistleblower protection
Electronic Data Involved: Electronic documents generally
Keywords: proportional, 13 years,
Key Insight: E-mail request must be proportional to the evidentiary needs of the case.
Nature of Case: Request for Production
Electronic Data Involved: e-mail
Keywords: DDJR, “tactical” gamesmanship, Van’s earing statements, Allison,
Key Insight: if the balance of the discovery requests outweighed their benefit
Nature of Case: Breach of contract, breach of covenant of good faith and fair dealing, fraud , negligent misrepresentation, declaratory relief and unfair competition.
Electronic Data Involved: responses of three interrogatories in light of changes to rule 26
Keywords: proportionality, motion to compel, balance of request, benefit of requested discovery
Key Insight: forensic imaging of USB drive of handwritten notes and reopening of deposition for questioning regarding the notes
Nature of Case: Employment Discrimination
Electronic Data Involved: handwritten notes from plantiff
Keywords: delaying tactics, reopening deposition, disclosure of evidence at deposition, relevancy
Key Insight: Court denied motion for protective order where Defendant?s ?general assertions of hardship and burden? re: the at-issue search were insufficient to justify a protective order, and explained that they had ?offered no affidavits or evidence of any kind to substantiate the general assertion of ?disruption? to their business? and had not ?shown with specificity that the proposed search would cause and undue burden and is thus improper?
Nature of Case: TCPA, FCPA
Electronic Data Involved: Allegedly burdensome search of ESI
Key Insight: Where a magistrate judge found the requested inspection of Plaintiff?s devices was not proportional to the needs of the case ?especially? in light of Plaintiff?s privacy and confidentiality interests despite the production of thousands of text messages by Plaintiffs? mother (which Plaintiff confirmed she had sent to her for safekeeping) and alleged inconsistent testimony from the Plaintiff, the District Court Judge overruling Defendants? objections acknowledged the need for caution in allowing such inspections (including by citing the 2006 Advisory Committee Notes to Fed. R. Civ. P. 34) absent evidence of a responding party?s failure as to its discovery obligations or a ?substantiated connection? between the at-issue device and the claims of the case and concluded that neither had been established in the present case
Nature of Case: Employment discrimination
Electronic Data Involved: ESI, text messages
Key Insight: Court granted Plaintiffs? motion to compel production of defendant database records. Defendant argued that the harm to third parties from disclosure of personal information contained in the requested data outweighed the relevance of the information to plaintiffs? claim, and that the preparation, review, and production presented an undue burden. Finding that the requested data was highly relevant to the class certification requirements, the court concluded plaintiffs? need significantly outweighed privacy concerns given the option of producing subject to protective order and Plaintiffs? agreement to accept data with personal information redacted. Nor was the court persuaded by defendant?s burden argument, finding the estimate and explanation from plaintiffs? database consultant ?more persuasive, appropriate, and accurate? than that provided by defendant – particularly in light of modifications Plaintiffs made to their request after defendant clarified how the data was stored in their systems. The court also noted that defendant?s briefing failed to allege any facts supporting its assertion that the information was more readily available from other sources.
Nature of Case: Class Action; Violation of Fair Credit Reporting Act
Electronic Data Involved: Database
Key Insight: Where responding party asserted that an at-issue request would require production of ?voluminous? irrelevant documents, that identification of the requested documents would require searching through thousands of clients files estimated to take ?one or more persons weeks to accomplish? or would cost between $8740 – $18350 if a vendor was retained to assist – not including attorney review, and that the information was available through alternative means, including depositions, the court concluded that the documents were ?at least minimally relevant? but that the burden of FULL production outweighed the benefit to the requesting party and ordered the responding party to utilize search terms or to hire a vendor to produce a more limited set of documents as prescribed by the court; court declined to shift the costs of the search , reasoning (in footnote) that ?[t]he mere fact that responding to a discovery request will require the objecting party ?to expend considerable time, effort and expense consulting, reviewing and analyzing ?huge volumes of documents and information? is an insufficient basis to object? to a relevant discovery request.?
Electronic Data Involved: ESI
Key Insight: Court overruled parties’ objections to Magistrate Judge’s order addressing scope of discovery where underlying court properly considered and applied the principle of proportionality; addressing defendant’s alleged costs of production, court reasoned in part that ?The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?
Nature of Case: Products liability
Electronic Data Involved: ESI
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