Tag: FRCP 26(b)(1) Scope Defined by Relevance and Proportionality (effective Dec. 1

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Martinez-Sanchez v. Anthony Vineyards, Inc. (E.D. Cal. Apr. 29, 2021)
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Matter of the Complaint of Paradise Family (M.D. Fla. 2021)
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Lukis v. Whitepages Incorporated (N.D. Ill.)
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Lamaute v. Power (D.D.C. 2021)
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Hastings v. Ford Motor Co. (S.D. Cal. 2021)
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Brown v. SSA Atlantic (S.D. Ga. 2021)
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Copenhaver v. Cavanga Group S.p.A Omeca Division (D. Mont. 2021)
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Cary v. Ne. Ill. Reg’l Commuter R.R. Corp. (N.D. Ill. Feb. 22, 2021)
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Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)
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In re: 3M Combat Arms Earplug Prods. Liab. Litig. (N.D. Fla., Oct. 2020)

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

Matter of the Complaint of Paradise Family (M.D. Fla. 2021)

Key Insight: Plaintiff’s social media account information (Facebook and Instagram) is relevant and proportional to his alleged damages for loss of the capacity to enjoy life. Social media is not privileged or protected by any right of privacy.

Nature of Case: Admiralty

Electronic Data Involved: Social Media

Case Summary

Lukis v. Whitepages Incorporated (N.D. Ill.)

Key Insight: Plaintiff filed a Motion to Compel and to Extend Fact Discovery Deadline after Defendant refused to substantively respond to Plaintiff’s discovery requests. Similarly, Defendant also had filed Motion to Compel Plaintiff to respond to its discovery requests regarding online account information, social media and browser history. The Court granted Plaintiff’s Motion(s) and partially granted Defendant’s Motion to Compel. The fact discovery deadline in the matter was extended to approximately two months after the Court’s order(s).

Nature of Case: Class Action Lawsuit

Electronic Data Involved: Social Media, Online Account History, Privacy Settings on Websites, Internet Browser History

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

Hastings v. Ford Motor Co. (S.D. Cal. 2021)

Key Insight: In litigation over product defect claim(s), Plaintiff filed a Motion to Compel Defendants to produce additional records pursuant to its discovery requests. The Motion centered around search terms that Plaintiff sought to compel Defendants to utilize in searching for responsive records. Reviewing specific Requests for Production, the Court found that they were overbroad and lacked relevance. Plaintiff’s Motion was denied, and Plaintiff was ordered to show why it (and counsel) should not have to reimburse Defendants’ for attorney’s fees and expenses in responding to the Motion.

Nature of Case: Contract Product Liability

Electronic Data Involved: Search Terms

Case Summary

Brown v. SSA Atlantic (S.D. Ga. 2021)

Key Insight: Defendant filed a motion to compel and for sanctions regarding plaintiff’s failure to identify and produce Facebook account information. Plaintiff had deleted or deactivated and failed to disclose the existence of his multiple Facebook accounts. The court found that the ESI was not “spoliated” since plaintiff only deactivated, not deleted, his Facebook accounts. However, the court found plaintiff’s conduct “troubling” and ordered plaintiff to produce account data for each Facebook account he maintains or maintained, whether deactivated or not, and if defendant finds that substantive information was lost or destroyed, it could renew its motion for spoliation sanctions.

Nature of Case: Personal injury

Electronic Data Involved: Facebook

Case Summary

Copenhaver v. Cavanga Group S.p.A Omeca Division (D. Mont. 2021)

Key Insight: If a motion to compel is granted, the party whose conduct necessitated the motion is required to pay reasonable expenses in making the motion, including attorney fees. However, payment cannot be ordered if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action.”

Nature of Case: Products Liability

Electronic Data Involved: Email, Electronic Documents Generally

Case Summary

Cary v. Ne. Ill. Reg’l Commuter R.R. Corp. (N.D. Ill. Feb. 22, 2021)

Key Insight: Court granted, in large part, plaintiff’s motion to compel ESI, requiring defendant to disclose data sources that may contain relevant ESI and refused to impose an “arbitrary limit of five or seven custodians” requested by defendants given the number of people identified as having potentially relevant information in their initial disclosures. The court urged the parties to agree upon search terms to less the burden of ESI searches and revisit an agreed time period in light of the court’s memorandum and order, rather than take “absolute line-in-the-sand positions” (citing Standing Order Relating to the Discovery of Electronically Stored Information at Principle 1.02 (Cooperation)). The court denied plaintiff’s request to produce the entire contents of her work email, finding the blanket request overbroad on its face.

Nature of Case: Employment discrimination

Electronic Data Involved: Email

Case Summary

Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)

Key Insight: Court granted defendants’ motion to compel plaintiff to produce Slack messages used as part of its internal business communications. Despite the potentially 30,000 Slack messages to review, the court found compelling the testimony from defendants’ forensic expert who stated there are a number of tools and software vendors that have streamlined review and production of Slack messages. Further, searches could be limited to certain Slack channels, users and custodians to very streamline the volume of messages for review. Thus, “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case – if the requests and searches are appropriately limited and focused.”

Nature of Case: Intellectual property

Electronic Data Involved: Slack messages

Case Summary

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