FRCP 26(b)(1) Scope in General (effective Dec. 1, 2015) – Page 4

Nelson v Am. Family Mut. Ins. Co., No. 13-cv-607 (SRN/SER), 2016 WL 6917205 (D. Minn. May 13, 2016)

Dec 01 2016

Key Insight: Relying on Plaintiffs? delay in raising its problems with discover and the principle of proportionality, particularly ?the importance of the discovery in resolving the issues and whether the burden of production outweighs the discovery?s likely benefits,? the court denied Plaintiff?s motion to compel additional pre-certification discovery; court?s analysis included rejection of proposed sampling where it was clear that ?sampling would be the beginning rather than the end, of this issue? and because of Plaintiffs? delay in making the suggestions (?But this type of proposal should lead to meaningful conversations during discovery, not at the end of it.?; ?To attempt to begin negotiations about discovery at the end of the discovery period demonstrates at best a lack of diligence and at worst a lack of respect for the Court?s scheduling order.)

Nature of Case: Class action

Electronic Data Involved: Database, email

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

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

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

Dec 01 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

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

Sharma v. BMW N. Amer. LLC, No. 13-cv-02274-MMC (KAW), 2016 WL 1019668 (N.D. Cal. Mar. 15, 2016)

Dec 01 2016

Key Insight: Court compelled production of requested document retention policies where it determined that the policies were relevant and ?may help Plaintiffs to determine the universe of responsive documents and evaluate any gaps in document production? and that the production was proportional to the needs of the case where the modest number of pages at issue rendered the burden of production ?likely minimal, while the benefit of such information would be substantial?

Nature of Case: Putative class action re: allegedly defective vehicles

Electronic Data Involved: Document retention policies

Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)

Dec 01 2016

Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

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