Search Results For -proportionality

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Court Acknowledges Calls for Caution when Applying “Proportionality Test” to Preservation, Denies Motion for Protective Order
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Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery
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ESI Protocols: Courts Hold Parties to Account for Failing to Comply with the Protocols They Negotiated
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Bumps in the Road for a US Adequacy Decision Under GDPR
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Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)
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Huntsman v. Southwest Airlines Co. (N.D. Cal. 2021)
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Martinez-Sanchez v. Anthony Vineyards, Inc. (E.D. Cal. Apr. 29, 2021)
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Lamaute v. Power (D.D.C. 2021)
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Oppenheimer v. Episcopal Communicators, Inc. (W.D. N.C. 2020)
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Court Acknowledges Calls for Caution when Applying “Proportionality Test” to Preservation, Denies Motion for Protective Order

Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)

KPMG sought a protective order to limit the scope of its preservation obligation or to shift a portion of its preservation costs to plaintiffs.  At the time, the parties awaited ruling on plaintiffs’ Motion to Certify and KPMG was preserving more than 2,500 hard drives at a cost of more than $1,500,000.  Following the court’s analysis, the motion was denied.

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Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery

Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery.  The commentary (published as a "public comment version") provides valuable insight and guidance on one of the hottest topics in e-discovery today.  Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.”  Those principles are:

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Bumps in the Road for a US Adequacy Decision Under GDPR

As discussed in a prior post on this blog, electronic discovery that requires the processing and use of records and information that includes the personal data of individuals residing in the and the European Economic Area (“EEA”) must often incorporate measures to allow for compliance with the European Union’s General Data Protection Regulation (“GDPR”), which contains a number of requirements and limitations regarding the processing of such personal data and its transfer to countries outside the EEA.

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Edwards v. McDermott Int’l, Inc. (S.D. Tex. 2022)

Key Insight: The court was required to balance the proportionality factors to determine whether plaintiff’s proposed search terms that would require defendants to review 1.3 million documents were proportional to the needs of the case or if defendants’ proposal to review half as many documents was more proportional. In applying the proportionality factors, the court found it a “close call” but granted the motion in plaintiff’s favor, ordering defendants to apply plaintiff’s proposed search terms and to begin review of the documents and produce them on a rolling basis.

Nature of Case: Securities Fraud

Electronic Data Involved: Email

Case Summary

Huntsman v. Southwest Airlines Co. (N.D. Cal. 2021)

Key Insight: The parties sought clarification on the scope of plaintiff’s discovery seeking documents relating to Southwest’s practices for verifying military leave. Defendant objected to the discovery requests on the basis of relevance, scope and proportionality, but agreed to conduct a phased search of its custodians’ data for responsive documents. The court agreed with defendant that the requests as written were overbroad given that the certified class was focused on an alleged failure to pay for short-term leave and plaintiff was not entitled to all potential USERRA violations. “Southwest’s approach to using keyword searches and technology-assisted review in tandem does not offend the court’s expectation that the parties conduct a reasonable inquiry as required by the rules.”

Nature of Case: Class action under USERRA

Electronic Data Involved: Email

Case Summary

Martinez-Sanchez v. Anthony Vineyards, Inc. (E.D. Cal. Apr. 29, 2021)

Key Insight: The burden of production and utility of the employee badge scans sought by plaintiffs outweighed the benefit to plaintiffs of analyzing the information because: (1) the timekeeping software did not have a reporting function for timestamps and collecting the information would require at least 22,000 hours of manual work; (2) the software only contained records for some months of 2019, less than a quarter of the four-year class period; and (3) the timestamps do not definitively establish the time at which the event happened. Plaintiffs were only entitled to the data in the form in which it is ordinarily maintained. Further, plaintiffs’ request for another copy of defendants’ payroll data would be needlessly cumulative as defendants had provided alternative solutions to plaintiffs’ data extraction and reporting issues. Lastly, although the magistrate judge’s order did not explicitly cite to Rule 26(b)(2), the court’s reasoning clearly fell under Rule 26(b)(2)(B), which permitted the court to deny the production of ESI where the information is “not reasonably accessible because of undue burden or cost” irrespective of whether the magistrate judge had analyzed all the proportionality factors contained in Rule 26(b)(1).

Nature of Case: Labor and Employment

Electronic Data Involved: Timekeeping Data

Case Summary

Lamaute v. Power (D.D.C. 2021)

Key Insight: In using the proportionality test, each factor should be examined to balance the needs and rights of both parties and determine an appropriate resolution. When requests are overbroad and not proportional to the needs of the case, the court may limit the scope of the documents a party is required to produce.

Nature of Case: Employment Discrimination, Title VII

Electronic Data Involved: Electronic Documents Generally

Case Summary

Oppenheimer v. Episcopal Communicators, Inc. (W.D. N.C. 2020)

Key Insight: The litigation was over Defendant’s purported copyright infringement due to Defendant’s publishing of a copyrighted photograph on its website. Defendant served its first discovery requests on Plaintiff; Plaintiff provided an untimely response with a number of objections including attorney-client privilege (without a privilege log), and “boilerplate objections”. Defendant filed a Motion to Compel, which was granted. Plaintiff provided a supplemental response, however, Defendant filed an additional Motion to Compel, and also sought attorney’s fees for the Motion. Besides privilege, at issue was Plaintiff’s objection to the proportionality of Defendant’s discovery requests.

The Court did not find Plaintiff’s “boilerplate objections”, including proportionality, persuasive. And found that they lack specificity and/or merit. Plaintiff’s objection(s) of confidentiality on the grounds of settlement, proprietary business information was rejected. Similarly, the Court rejected the Plaintiff’s privilege objection(s) due to Plaintiff’s failure to provide a privilege log.

In summary, the Court found that Plaintiff’s assertion of boilerplate objections (and failure to provide a privilege log) consisted of grounds overruling all of his objections. The Court granted Defendant’s Motion to Compel, and similarly, ordered Defendant to provide it an estimate of the attorney’s fees spent on the Motion (for the purpose of awarding Defendant attorney’s fees).

Nature of Case: Intellectual Property, Copyright Infringement

Electronic Data Involved: Digital Photograph

Case Summary

Key Insight: Court rejected additional discovery based off proportionality and discovery already produced. There was no additional proof of unproduced, relevant texts.

Electronic Data Involved: Text Messages

Keywords: additional discovery, proportionality

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