FRCP 26(b)(1) Scope in General (effective Dec. 1, 2015) – Page 2

Bratcher v. Navient Sols., Inc., 249 F.Supp.3d 1283 (M.D. Fla. 2017)

Dec 01 2017

Key Insight: Where defendant sought to examine plaintiff?s smartphone itself for the purpose of obtaining a log of blocked calls arguing that ?plaintiff is not entitled to recovery for any blocked calls,? the court noted that defendant had failed to provide legal basis for this position and that ?[T]here is no routine right of direct access to a party?s electronic information system. … absent a factual finding of some non-compliance with [the] discovery rules, direct access is unwarranted.? The court further noted that defendant made no effort to comply with the requirement for a proposal for the protection of privacy rights, the protection of privileged information, and the separation of irrelevant information during inspection. On this basis, the court found direct access to the cell phone unwarranted and denied defendant?s motion to compel.

Nature of Case: Telephone Consumer Protection Act

Electronic Data Involved: Cell Phone Call Block Records

William C. Blosser v. Ashcroft, Inc., No. C17-5243-BHS, 2017 WL 4168502 (W.D. Wash. Sept. 19, 2017)

Dec 01 2017

Key Insight: Where Defendant contended there was only one way to search the at-issue database but failed to explain why and where Plaintiffs noted Defendant?s failure to offer reasons why optical character recognition could not be used on the database, the court ?agree[d],? reasoning that parties might otherwise be encouraged to ?maintain inaccessible databases to limit their discovery obligations? and noted that Defendant may need to consult a third party vendor if necessary and ordered the parties to meet and confer regarding the issue

Nature of Case: Asbestos exposure liability

Electronic Data Involved: Database

View Case Opinion

Brand Servs., LLC v. Irex Corp., NO: 15-5712, 2017 WL 67517 (E.D. La. Jan. 5, 2017)

Dec 01 2017

Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.

Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act

Electronic Data Involved: ESI

View Case Opinion

Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901 (S.D.N.Y. Nov. 16, 2016)

Dec 01 2016

Key Insight: Plaintiffs? broad request for documents previously produced by Defendants in prior investigations or produced to or received from any government agency, regulator, department, etc. related to the issues in the current investigation failed to withstand scrutiny to establish relevance beyond merely ?bear[ing] on? the issues in the investigation, particularly where Plaintiffs failed to point to any specific information that that would be found solely in the unproduced documents and not in the 1.5 million documents Defendants did produce from prior investigations (?At bottom, then, Plaintiffs? entire relevancy argument hinges on a general contention that every communication and work product related to the regulatory investigations is ?likely? to contain additional relevant information. But that sort of conclusory claim is insufficient to support such an expansive discovery request.?); court also concluded that the requested discovery was not proportional, but denied the motion without prejudice, allowing plaintiff an opportunity to renew their motion with ?narrower, more proper discovery requests.?

Nature of Case: Conspiracy to manipulate ISDAfix rates (government investigation)

Electronic Data Involved: ESI previously produced to government, all documents sent to/received from government related to issues in underlying investigation (including correspondence, subpoenas, CIDs, etc.)

McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., No. 3:14-cv-2498-B, 2016 WL 98603 (N.D. Tex. Jan. 8, 2016)

Dec 01 2016

Key Insight: In this case, the court addressed Plaintiff?s motion to compel ?the production and organization of certain documents and metadata? and considered the applicability of Fed. R. Civ. P. 34(b)(2)(E)(i) and (ii) to the production of electronically stored information. Ultimately, ?[t]he Court [found] persuasive the analysis that, where Rule 34(b)(2)(E)(i) addresses the organization of a production and Rule 34(b)(2)(E)(ii) specifically addresses the form for producing ESI (where form of production is inherently not an issue with hard-copy documents), and in light of the purposes of the 2006 amendments to Rule 34 and of Rule 34(b)(2)(E)(i)?s requirements, Rules 34(b)(2)(E)(i) and 34(b)(2)(E)(ii) should both apply to ESI productions.?

Nature of Case: Breach of commercial lease agreement

Electronic Data Involved: ESI

Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)

Dec 01 2016

Key Insight: Court granted in part Plaintiffs? motion to compel additional searching in two previously excluded timeframes, denying the motion as to documents generated at a time in which ?nothing of significance was happening? as indicated by Defendants and because the cost and burden of the requested discovery would violate the rule of proportionality but granting the motion as to information created after the filing of the complaint, where the court rejected Defendants? claim that nothing created after that time could have possibly been relevant and noted that Defendants failed to present any specific argument about undue burden, apart from having disassembled their review teams

Nature of Case: Breach of contract

Electronic Data Involved: ESI from previously unsearched timeframes

Archer Daniels Midland Co. v. Chemoil Corp., 15-2199, 2016 WL 9051173 (C.D. Ill. Oct. 19, 2016)

Dec 01 2016

Key Insight: Court denied Defendant?s motion to compel production of emails from Plaintiff?s former employee where Plaintiff?s initial production included some communications from the at-issue employee, where Plaintiff had already conducted a second search that did not yield additional documents, where the emails of the former employee had been moved off of active servers thus requiring the initiation of disaster recovery protocols to conduct an additional search, and where the emails of other parties to the potentially relevant communications remained on the active servers and had also been searched; court also noted that Defendant had deposed the former employee for 6 hours

Electronic Data Involved: Email of former employee

Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)

Dec 01 2016

Key Insight: Where Defendants requested a full archive of social media contents from the decedent and her next of kin from 2007 through the date of Plaintiff?s death in April 2013, the court acknowledged that some social media content may be relevant to the claims and defenses at issue but found that where the request was not tailored to relevant content or limited to a reasonable period of time it was overbroad and Defendants? motion to compel was denied

Nature of Case: Wrongful death

Electronic Data Involved: Social media (Facebook)

Moore v. Lowe?s Home Centers, LLC, No. 14-1459 RJB, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)

Dec 01 2016

Key Insight: Court declined to compel Defendant to conduct additional searches of witnesses? email accounts using 88 new search terms and excluding Plaintiff?s name finding that the request was ?overly broad and not proportional to the case? and reasoning that Plaintiff relied upon a multi-plaintiff case to justify her position and that she had not provided specifics regarding what she reasonably expected to find or shown that the information could not be found through other means, such as by asking additional questions of witnesses already scheduled for deposition ; court ordered Defendant to produce the relevant policies it operated under where Defendant claimed emails were deleted in the ordinary course of business according to Company policy, and that Defendant should also provide Plaintiff with the date of the deletion and the name of the person who made the deletion or the process of deletion, if known

Nature of Case: Wrongful termination

Electronic Data Involved: Email

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:FRCP 26(b)(1) Scope in General (effective Dec. 1, 2015)