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

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In re: 3M Combat Arms Earplug Prods. Liab. Litig. (N.D. Fla., Oct. 2020)
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Murray v. City of Warren (E.D. Mich. 2020)
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Maurice v. Allstate Insurance Co. (W.D. Wash. 2020)
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Gross v. Chapman (N.D. Ill. July 28, 2020)
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McMaster v. Kohl’s Department Stores, Inc. (E.D. Mich. 2020)
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Berg v. M & F Western Products, Inc. (E.D. Tex. 2020)
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Equal Employment Opportunity Commission v. M1 5100 Corporation (E.D. Fla. 2020)
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Densen v. The Corporation of the President of the Church of Jesus Christ of Latter- Day Saints (D. Utah 2020)
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EEOC v. George Washington Univ. (D.D.C. June 26, 2020)
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Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Murray v. City of Warren (E.D. Mich. 2020)

Key Insight: The court agreed that plaintiff’s request for “all emails” from three custodians was overly broad and narrowed it to relevant search terms relating to plaintiff’s allegations of harassment. The court also relied on its prior ruling, directing the parties to confer regarding the search terms and if the parties cannot agree on appropriately limited search terms, they will share the cost of retaining an expert to assist them. If they still cannot agree, plaintiff can renew his motion and provide the court with an expert report substantiating his position.

Nature of Case: Employment discrimination

Electronic Data Involved: Email, Personnel files

Case Summary

Maurice v. Allstate Insurance Co. (W.D. Wash. 2020)

Key Insight: Defendant had a Motion to Compel Plaintiff to produce information and documents regarding physical and emotional injuries that she purportedly sustained during the accidents giving rise to litigation.

Among the information sought by Defendant were documents and information regarding the negative impact a motor vehicle accident on her social life, hobbies and activities. This included communications, emails, text messages, photographs, video and Facebook posts. Defendant’s Motion was granted, however, Defendant’s request for attorney’s fees and expenses was denied.

Nature of Case: Insurance Contract

Electronic Data Involved: Emails, Text Messages, Photographs, Video and Facebook Posts

Case Summary

Gross v. Chapman (N.D. Ill. July 28, 2020)

Key Insight: Bride and groom called off their wedding after a dispute arose over whether it should be an “adults only” affair. The bride’s parents sued the groom’s parents claiming they were out over $100,000 in wedding costs. After defendants produced 5,000 text messages, the court declined to grant further discovery into the process surrounding how the text messages were collected. A large volume of ESI had already been produced at significant expense to defendants and plaintiff’s motion to compel was based on speculation— “discovery on discovery with no basis other than plaintiffs’ hopeful guess that there must be more texts” and was substantially out of proportion to the needs of the case.

Nature of Case: Invasion of Privacy

Electronic Data Involved: Text Messages

Case Summary

McMaster v. Kohl’s Department Stores, Inc. (E.D. Mich. 2020)

Key Insight: The litigation was over purported employment discrimination based on age and/or disability. Plaintiff’s Second Motion to Compel specifically sought emails from an employee of Defendant for the purpose of establishing a pattern of age and/or disability discrimination. The Court found that the emails were relevant to the litigation, and chose a date range other than that request by the parties.

The larger disagreement between the parties was over the search terms to be utilized for finding the emails. The Court ordered the parties, if they could not agree on terms, to retain an expert to assist them, and if they still could not agree, to return to Court with the opinion of the expert. Plaintiff’s Second Motion to Compel was partially granted and partially denied.

Nature of Case: Employment Discrimination, Disability Discrimination, Wrongful Termination, ADA

Electronic Data Involved: Email

Case Summary

Berg v. M & F Western Products, Inc. (E.D. Tex. 2020)

Key Insight: Defendant filed a Motion to Compel Plaintiff that was granted by the Court. The Court ordered Plaintiff to conduct a full search of all documents in hard and electronic formats conduct, including but not limited to all data on social media platforms, demand letters issued by Plaintiff or his counsel to third parties referencing this case, documents and materials of Plaintiff’s company, and documents and materials related to the litigation that are in the custody and control of Plaintiff’s current or prior lawyers. The Motion’s request(s) that Plaintiff be compelled to attend his deposition and testify at trial in-person were denied.

Nature of Case: Copyright Infringement

Electronic Data Involved: Social Media, Electronic Documents

Case Summary

Equal Employment Opportunity Commission v. M1 5100 Corporation (E.D. Fla. 2020)

Key Insight: Counsel has a duty to oversee their clients’ collection of information and documents during the discovery process, especially when ESI is involved. Here, counsel failed to adequately supervise the ESI collection process. Counsel had no knowledge of the search efforts or process taken by Defendant is its discovery collection. Ultimately, the Defendant was given a final opportunity to produce responsive discovery. The parties were ordered to attempt to come to an agreement regarding and ESI protocol that included relevant data sources, custodians, and search terms.

Nature of Case: Employment Discrimination

Electronic Data Involved: Electronic Documents Generally

Case Summary

Densen v. The Corporation of the President of the Church of Jesus Christ of Latter- Day Saints (D. Utah 2020)

Key Insight: A forensic imaging of Plaintiff’s electronic devices and cloud based accounts was warranted because Plaintiff lost relevant evidence during the discovery process and continually made misrepresentations regarding this evidence and how it was stored. The forensic imaging would preserve any evidence and possible recover evidence that has been loss. This would not be an invasion of privacy as Plaintiff’s privacy can be adequately protected. A third party service provider can image the devices and collect the data. Counsel would not have access to any of the data until after the court approves a review plan, which would implement additional safeguards to ensure there is no access to irrelevant or private information.

Nature of Case: Sexual Assault, Fraud

Electronic Data Involved: Audio Recording, Cloud Based Account Data, Electronic Device Data

Case Summary

EEOC v. George Washington Univ. (D.D.C. June 26, 2020)

Key Insight: Under FRE 502(d), inadvertent disclosures do not result in a waiver of privilege. While this rule can be utilized to reduce costs of pre-production privilege review, a party cannot be forced to engage in a discovery process that would likely result in the production of privileged documents.

Nature of Case: Employment Discrimination, Equal Pay, Title VII

Electronic Data Involved: Email

Case Summary

Lawson v. Spirit Aerosystems, Inc. (D. Kan. June 18, 2020)

Key Insight: Cost shifting of the TAR costs to Plaintiff was warranted based on an analysis of the proportionality factors. Plaintiff was warned to narrow his discovery multiple times, continued to demand overbroad criteria for TAR, was aware of the potential costs of TAR, and was aware the discovery he sought led to largely non-responsive documents. Moreover, Defendant produced responsive documents by conducting its own search and production of documents outside of the TAR process.

Nature of Case: Breach of Contract, Non-Compete

Electronic Data Involved: Electronic Documents Generally

Case Summary

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