FRCP 26(b)(2)(b) “Not Reasonably Accessible”

Martinez-Sanchez v. Anthony Vineyards, Inc. (E.D. Cal. Apr. 29, 2021)

Apr 29 2021

Key Insight: The burden of production and utility of the employee badge scans sought by plaintiffs outweighed the benefit to plaintiffs of analyzing the information because: (1) the timekeeping software did not have a reporting function for timestamps and collecting the information would require at least 22,000 hours of manual work; (2) the software only contained records for some months of 2019, less than a quarter of the four-year class period; and (3) the timestamps do not definitively establish the time at which the event happened. Plaintiffs were only entitled to the data in the form in which it is ordinarily maintained. Further, plaintiffs’ request for another copy of defendants’ payroll data would be needlessly cumulative as defendants had provided alternative solutions to plaintiffs’ data extraction and reporting issues. Lastly, although the magistrate judge’s order did not explicitly cite to Rule 26(b)(2), the court’s reasoning clearly fell under Rule 26(b)(2)(B), which permitted the court to deny the production of ESI where the information is “not reasonably accessible because of undue burden or cost” irrespective of whether the magistrate judge had analyzed all the proportionality factors contained in Rule 26(b)(1).

Nature of Case: Labor and Employment

Electronic Data Involved: Timekeeping Data

Case Summary

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

Jun 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

Lareau v. Nw. Med. Ctr., No. 2:17-cv-81 (D. Vt. Mar. 27, 2019)

Mar 27 2019

Key Insight: parties unable to identify search terms that satisfy court direction for “appropriate search terms.” Attorney is not required to offer opposing counsel his or her own ideas about how to narrow a particular search.

Nature of Case: wrongful termination

Electronic Data Involved: approximately 24,000 emails

Keywords: reasonable scope, search terms, format, sampling

View Case Opinion

OptoLum v. Cree, Inc., No, 1:17CV687 (M.D.N.C. Dec. 28, 2018)

Dec 28 2018

Key Insight: Defendant’s email archive system had had issues and was replaced before litigation filed, but servers were kept. Stubbed E-mail attachments were inaccessible. defendant showed attachments were potentially relevant and motion to compel was granted. Costs were to be split since it would be undue burden on plaintiff alone and they had not acted in bad faith.

Nature of Case: Patent Infringement

Electronic Data Involved: Stubbed E-mail Attachments

Keywords: Restoration, undue burden, bad faith, cost shifting

View Case Opinion

Valdes v. Greater Naples Fire Rescue Dist. No. 2:17-cv-417-FtM-29CM (M.D. Fla. Sept. 7, 2018)

Sep 07 2018

Key Insight: forensic examination should be ?the exception, not the rule.?

Nature of Case: employment, FMLA

Electronic Data Involved: text messages, deleted messages, lost devices, forensic examination

Keywords: social media, text messages, forensic examination, FMLA

View Case Opinion

Satmodo, LLC v. Whenever Communications, LLC, 3:17-cv-192-AJB-NLS (S.D. Cal. July 20, 2018)

Jul 20 2018

Key Insight: requests are overbroad, alternative “live test” proposed instead of inspection of devices.

Nature of Case: Plaintiff allegation of Defendant engagement in a click fraud scheme.

Electronic Data Involved: inspection of defendant’s computing devices (computers, phones, tablets, etc)

Keywords: wasteful discovery, common-sense concept of proportionality, Winter list

View Case Opinion

Webastro Thermo & Comfort North America, Inc., et al. v. Bestop, Inc. (Eastern District of Michigan, 2018)

Jun 26 2018

Key Insight: Providing evidence of voluminous discovery allows for narrowing of search terms

Nature of Case: Patent infringement

Electronic Data Involved: Electronic documents

Keywords: Webasto, Jeep,

View Case Opinion

North Shore-Long Island Jewish Health Systems, Inc. v. Multiplan, Inc., No. 12-cv-1633 (JMA) (AKT) (E.D.N.Y. Mar. 28, 2018).

Mar 28 2018

Key Insight: requiring creation of new documents, proportionality

Nature of Case: breach of contract

Electronic Data Involved: electronic records

Keywords: timeliness, relevance, raw data, create, creation of documents, cost-shifting, preclusion order

Identified Local Court Rule(s): Loc. Civ. R. 37.1

View Case Opinion

Equal Emp’t Opportunity Comm’n v. FedEx Ground Package Sys., Inc., No. 2:15-cv-00256-MRH (W.D. Pa. March 21, 2018)

Mar 21 2018

Key Insight: Inconvenient is not unreasonable or burdensome wrt e-discovery

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Keywords: smoking gun,

View Case Opinion

Allstate Insurance Co. v. Papanek (No. 3:15-cv-240, 2018 (S.D. Ohio Jan. 5, 2018), 2018)

Jan 05 2018

Key Insight: whether there was accessibility problems or undue burden or cost associated with turning over phones and computers for forensic imaging; also, whether it was sufficient to have plaintiff’s employee’s conduct a search for responsive ESI

Nature of Case: breach of contract, tortious interference

Electronic Data Involved: e-mails, phone messages, physical computers and cellphones and their data

Keywords: “former business relationship”, “information may be discoverable even if not ultimately admissible into evidence”, “Allstate, however, agreed to produce responsive information within its custody”

View Case Opinion

Tag:FRCP 26(b)(2)(b) “Not Reasonably Accessible”