FRCP 26(b)(1) Scope in General (effective Dec. 1, 2015) – Page 3

MP Nexlevel of California, Inc. v. CVIN LLC, No. 1:14-cv-00288-LJO-EPG, 2016 WL 1408459 (E.D. Cal. April 11, 2016)

Dec 01 2016

Key Insight: Court found that the at-issue discovery was not required under Fed. R. Civ. P. 26(b)(1) and declined to compel production of every document ?referring or relating? to Plaintiff?s ?designated Responsible Managing Employee? for all 11 of Plaintiff?s California projects where the court determined that the relevance was minimal, where both parties ?appeared to agree? that the request would require ?a search for every document to or from [the employee]? and Plaintiff alleged that many documents were not electronically searchable, and where the court recognized that ordering such production could cause a ?chilling effect? that may ?discourage [construction] companies from filing a lawsuit merely to avoid the discovery costs?

Electronic Data Involved: ESI and other records “referring or relating” to specified employee

In re Ex Parte Application of Global Energy Horizons Ltd., No. 14-3180, 2016 WL 1657889 (3d Cir. Apr. 26, 2016)

Dec 01 2016

Key Insight: Third Circuit affirmed denial of Global Energy Horizon?s motion to compel reasoning that the District Court was ?on firm ground? in determining the burden imposed upon the non-party would ?likely have been intrusive and burdensome in violation of Rule 45 despite Global?s offer to pay for reasonable cost? where responding to the subpoena seeking ?all communications between [the non-party?s] 400 to 450 employees? and another entity and any financial documents relating to certain technology would require that each employee be interviewed and their hard drives be copied and reasoning that the District Court was reasonable in deciding not to modify the subpoena where the non-party had already ?spent thousands of dollars and substantial time? responding to prior requests; Circuit Court also affirmed lower court?s finding that non-party was under no duty to preserve emails where the record ?did not lead the court to conclude? that the non-party ?should have known that litigation was imminent? and ?Global never sought a litigation hold on [the non-party?s] electronically stored information?

Electronic Data Involved: ESI

Kissing Camels Surgery Center, LLC v. Centura Health Corp., No. 12-cv-03012-WJM-NYW, 2016 WL 277721 (D. Colo. Jan. 22, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs objected to Defendants? ?duplicative? requests and claimed they had already produced responsive documents but provided Defendants with no guidance as to where such documents could be found within the voluminous production, the court acknowledged that it would ?ordinarily? conclude that Plaintiffs had no obligation to identify responsive documents but, citing the volume of data at issue, the ?asymmetry of information regarding the production between Plaintiffs,? the time the case had been pending, and the fact that additional discovery would be required, the court concluded that Plaintiff should provide additional information and ordered that Defendants would be permitted to identify ten categories of requested documents that Plaintiffs claimed to be duplicative and that Plaintiffs must then identify documents responsive to those requests

Electronic Data Involved: ESI

In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)

Dec 01 2016

Key Insight: In this case, the parties disagreed on the discoverability of communications between Defendants? foreign subsidiaries and divisions and foreign regulators regarding the filters at issue in the case. Following analysis of the effects of the December 1, 2015 amendments on the Federal Rules of Civil Procedure and of the specific facts of the case, the court determined that the at-issue communications were ?only marginally relevant? and was persuaded that ?the burden of [the] foreign discovery would be substantial.? Thus, the court concluded that Defendants were not required to search their foreign entities for communications with foreign regulators. In the course of its discussion of the amendments, the court stated: “Amended Rule 26(b)(1) was adopted pursuant to the Rules Enabling Act, 28 U.S.C. ? 2072 et. seq. That statute provides that ‘[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.’ Id., ? 2072(b). Thus, just as a statute could effectively overrule cases applying a former legal standard, the 2015 amendment effectively abrogated cases applying a prior version of Rule 26(b)(1). The test going forward is whether evidence is ‘relevant to any party?s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.'”

Meyers v. Nicolet Rest. Of De Pere, LLC, No. 15-C-444, 2016 WL 1275046 (E.D. Wis. Apr. 1, 2016)

Dec 01 2016

Key Insight: Court declined to compel production of Plaintiff?s computer or to allow a third party to conduct an examination where Defendant?s request was ?not calculated to produce information relevant to Defendant?s arguments or the proportional needs of the case? and where the court reasoned that even if Defendant found what it was looking for, it would not change its legal position

Nature of Case: Fair and Accurate Credit Transactions Act

Electronic Data Involved: Computer (for inspection)

Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088 (RMB)(HBP), 2016 WL 616386 (S.D.N.Y. Feb. 2, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel a response to his second set of document requests (consisting of 168 pages and 1,027 individual requests), noting several procedural and ?substantive defects,? including that Plaintiff?s requests were ?grossly irrelevant? and sought ?numerous documents that ha[d] nothing to do with the claims or defenses? and disproportional to the case (citing Defendant?s prior production of approximately 1,000 pages of documents), even despite the ?strong federal policy against employment discrimination?; addressing defendant?s motion for sanctions, court concluded that ?Plaintiff?s Second Document Request was unquestionably prepared and served in bad faith and in a conscious effort to impose an unreasonable burden on defendants? and cited Plaintiff?s numerous document requests, violation of two prior discovery orders and other ?obstructive behavior? and granted a protective order relieving defendant of the obligation to respond and ordered that Plaintiff was prohibited from offering or using any document not already produced, that Plaintiff must submit to a medical exam (as was previously ordered) or suffer dismissal of his case, and that Plaintiff would be liable for the attorneys fees incurred by Defendants in addressing the motions resolved in this opinion

Nature of Case: Employment litigation (Title VII, Age Discrimination, ADA, etc.)

Electronic Data Involved: ESI

T-Mobile USA, Inc. v. Huawei Device USA, Inc., No. C14-01351 RAJ, 2016 WL 1597102 (W.D. Wash. Apr. 20, 2016)

Dec 01 2016

Key Insight: Motion for protective order granted where requested information was not relevant to claims or defenses plead and thus was outside of the scope of discovery

Nature of Case: Misappropriation of Trade Secrets

Electronic Data Involved: ESI, database

E.E.O.C. v. The Amer. Coal Co., No. 3:15-cv-01293-SMY-PMF, 2016 WL 1639682 (S.D. Ill. Apr. 26, 2016)

Dec 01 2016

Key Insight: Where non-party argued that subpoena exceeded scope of EEOC?s authority because it sought information irrelevant to the claim of sex discrimination (e.g., information re: race) and was unduly burdensome because it would take the single HR Officer approximately 500 hours to respond and take her away from other important work for the corporation, the court found that the information sought was relevant (reasoning that the standard of relevance is broad and ?generous? and that the information could ?shed light on possible discriminatory hiring practices and thereby, lead to the discovery of admissible evidence?) and that the burden did not outweigh the benefit, reasoning that ?[[o]ther than the fact that its employment records are kept in paper format in southern Illinois, [the non-party] has not provided any reason as to why its corporate human resources department cannot assist in responding to the subpoena or why it could not hire temporary staff to assist.?

Nature of Case: Employment litigation: sex discrimination

Electronic Data Involved: Hard copy

Mid. Am. Sols. LLC v. Vantiv, Inc., No. 1:16-mc-2, 2016 WL 1611381 (S.D. Ohio April 4, 2016)

Dec 01 2016

Key Insight: Court denied motion to compel production of at-issue data in ?condensed format? where Plaintiff originally requested and was provided with the data in it its ?original and unaltered format? and where the requested re-production was not proportional to the needs of the case because relevant evidence had already been provided; Court denied request for inspection to test accuracy of data produced where Plaintiff had not yet taken full advantage of the data in hand (by failing to take advantage of certain Excel functions) and thus had no basis for questioning the accuracy, thus rendering an inspection out of proportion to the needs of the case

Nature of Case: Breach of contract, fraud and related claims

Electronic Data Involved: ESI

Perez v. Mueller, No. 13-C-13-2, 2016 WL 3360422 (E.D. Wis. May 27, 2016)

Dec 01 2016

Key Insight: Where Defendants sought to compel discovery from the Secretary of the US Dept. of Labor, court found the proportionality factors in Rule 2(b)(1) ?easily tilt[ed] in favor of disclosure? reasoning that ?[t]he issues in this litigation are important from a public policy perspective, or at least they should be, lest the Secretary be engaging in years of unnecessary litigation at taxpayer expense? and also reasoning that the ?transaction at issue was for more than $13 million dollars? and that ?the federal government has unlimited resources? while Defendants were ?obviously financing their own defense.?

Nature of Case: ERISA

Electronic Data Involved: ESI

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