Key Insight: ESI does not need to be produced if it is from sources not reasonably accessible on account of undue burden or cost.
Nature of Case: medical fees
Electronic Data Involved: medicare documents, etc
Keywords: undue burden, not reasonably accessible, third party requests
Key Insight: work product protection does not apply to investigation or handling of underlying claim in a bad faith case.
Nature of Case: bad faith insurance claim
Electronic Data Involved: Insurance claim file including work product and possibly privileged documents
Keywords: work product, underlying claim, investigation, bad faith, privilege log
Key Insight: All data stored as picture files therefore unsearchable
Nature of Case: Employment Discrimination
Electronic Data Involved: “picture files”; text messages; email; ESI; hard drives; database
Keywords: Cost shifting; Inaccessible; data stored as picture files; searchablity
Key Insight: Discovery request for managers’ text messages was ruled overbroad and not likely to be useful due to store policy that managers only communicate via email or voicemail.
Nature of Case: Fair Labor Standards Act dispute
Electronic Data Involved: text messages, email, communication methods the managers could have possibly used
Keywords: Text messages, overbreadth, overbroad, relevance
Key Insight: proportionality
Nature of Case: class action
Electronic Data Involved: backup tapes
Keywords: undue burden, statistical sampling, restoration, reasonably accessible, cooperation, interrogatory, relevance
Key Insight: Court compelled limited production from backup tapes and declined to shift costs despite Defendant?s production of archived emails where Defendant failed to turn off its auto-purge and the purged emails would not, therefore, be located in the archive and where Defendant failed to specify the alleged burden and expense and Plaintiff agreed to limit their request; Defendant was required to search its SharePoint site where it utilized the site to communicate with employees, where many documents referred to the SharePoint, and where Defendant did not claim that the information was not reasonably accessible
Nature of Case: Trademark
Electronic Data Involved: Backup tapes, SharePoint
Key Insight: Court granted motion to compel additional searching of Defendant?s computer systems and declined to order cost shifting despite Defendant?s claim that its inability to conduct a global search of its systems and resulting need to rely on a vendor rendered the search disproportional to the needs of the case where the court reasoned that Defendant had not carried its burden to show the information was inaccessible (?i.e., must be restored, de-fragmented, or reconstructed) and instead relied upon the expense of contracting with an outside vendor and that the necessary expense was the result of Defendant?s choice to use a system that did not preserve emails in a readily searchable format; ?Proportionality consists of more than whether the particular discovery method is expensive.?
Nature of Case: Employment litigation
Electronic Data Involved: ESI, including email
Key Insight: District court did not abuse discretion in declining to impose an adverse inference for failure to preserve ESI in an accessible format and instead awarding costs and attorneys fees where the at issue system “contained only ‘tangential information'” and where Plaintiff failed to seek discovery from other sources; Circuit court’s analysis noted recently amended Rule 37(e)’s required finding of intent to impose an adverse inference and that the District Court “specifically found that defendants did not act with such intent”
Nature of Case: Class action: breach of contract
Electronic Data Involved: ESI in third party custody but under control of defendants
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
Key Insight: Court declined to find ESI ?not reasonably accessible? because of the alleged cost of production where the case at issue was worth $4.5 million and thus the alleged costs did not appear ?sufficiently disproportionate,? where the defendant did not allege a lack of resources, and where defendant had a ?significant interest? in performing the discovery work in a manner that controlled costs but made two exceptions as to documents that would need to be culled and separately recoded and restored before they could be searched and as to documents that needed to be converted to a searchable format to determine tier potential relevance; court ordered parties to confer re: production protocol and cost shifting
Electronic Data Involved: ESI
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