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

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Youngevity Int’l Corp. v. Smith, No. 16-cv-704-BTM-JLB (S.D. Cal. Dec. 21, 2017)
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Rutledge-Plummer v. SCO Family of Servs., No. 15-CV-2468 (MKB) (SMG), 2017 WL 570765 (E.D. N.Y. Feb. 13, 2017)
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Brand Servs., LLC v. Irex Corp., NO: 15-5712, 2017 WL 67517 (E.D. La. Jan. 5, 2017)
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In re Fluoroquinolone Prods. Liab. Litig., MDL. No. 15-2642 (JRT), 2016 WL 4045414 (D. Minn. July 20, 2016)
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Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)
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FTC v. Directv, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 3351945 (N.D. Cal. June 9, 2016)
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Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901 (S.D.N.Y. Nov. 16, 2016)
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Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)
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Moll v Telesector Res. Grp., Inc., No. 04-CV-0805S(Sr), 2016 WL 6095792 (W.D.N.Y. Oct. 19, 2016)
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Moore v. Lowe?s Home Centers, LLC, No. 14-1459 RJB, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)

Youngevity Int’l Corp. v. Smith, No. 16-cv-704-BTM-JLB (S.D. Cal. Dec. 21, 2017)

Key Insight: 4.2 million pages of keyword “”hit”” documents produced without review, but designated “”Attorney Eyes Only.

Nature of Case: unfair competition

Electronic Data Involved: 4.2 million pages of keyword “”hit”” documents

View Case Opinion

Rutledge-Plummer v. SCO Family of Servs., No. 15-CV-2468 (MKB) (SMG), 2017 WL 570765 (E.D. N.Y. Feb. 13, 2017)

Key Insight: Plaintiff also sought production of all emails between 8 named individuals dating from August 1, 2013 to the present (December 2016). The court found the scope of this request (lacking any search terms or subject matter restrictions) was too burdensome when weighed against the potential benefit of production. Plaintiff narrowed her request to docs that related to her and limited the date range during oral argument, however the court found that this was still too broad and too close to the close of discovery to be permitted. Furthermore, Defendant had already produced emails relating to Plaintiff from most of the 8 custodians and had written to Plaintiff suggesting she propose search terms if she sought additional discovery. Plaintiff?s counsel, whose representation started after Defendant?s letter to Plaintiff, did not review Defendant?s earlier discovery responses and waited 10 months before requesting the additional discovery (using the overbroad parameters). The court denied Plaintiffs request except for certain documents referenced in depositions that were not produced. The court also denied Plaintiffs overly broad request for ?all documents pertaining to policies, procedures, and guidelines related to Defendant?s computers, computer systems, electronic data and electronic media? as too burdensome.

Nature of Case: Motion to Compel in employment discrimination action

Electronic Data Involved: ESI

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

In re Fluoroquinolone Prods. Liab. Litig., MDL. No. 15-2642 (JRT), 2016 WL 4045414 (D. Minn. July 20, 2016)

Key Insight: Court ruled that defendants may, under the proportionality factors in 26(b)(1), limit their search to databases and central repositories rather than engage in custodial searches for all cases at the Defendant Fact Sheet (DFS) stage of the MDL due to the ?significant burden of the proposed custodial-file searches? and the less-than-certain benefits of such searches.? The Court noted Defendant?s acknowledgement that custodial searches would likely be ?warranted for a narrower group of cases at a later stage? and that plaintiffs were free to seek permission to engage in further discovery if information available in the structured databases was insufficient.

Nature of Case: Products Liability

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)

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

FTC v. Directv, Inc., No. 15-cv-01129-HSG (MEJ), 2016 WL 3351945 (N.D. Cal. June 9, 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

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

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

Moll v Telesector Res. Grp., Inc., No. 04-CV-0805S(Sr), 2016 WL 6095792 (W.D.N.Y. Oct. 19, 2016)

Key Insight: Addressing Plaintiffs? objection to a request for, essentially, all of Plaintiff?s Facebook content, the court cited Giacchetto v. Patchogue-Medford Union Free School Dist., No. 293 F.R.D. 112 (E.D.N.Y. 2013) for the proposition that ?routine status updates and/or communications on social networking websites are not, as a general matter, relevant to [plaintiff?s] claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same,? but further reasoned that ?post specifically referencing? Plaintiff?s emotional distress or at-issue treatment were discoverable and should be produced

Nature of Case: Motion to compel in case alleging discrimination, harassment, hostile environment, retaliation and unequal pay in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law and the Equal Pay Act

Electronic Data Involved: Social media/social network (Facebook)

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

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