FRCP 26(b)(2)(b) “Not Reasonably Accessible” – Page 6

Connecticut Gen. Life Ins. V. Earl Scheib, Inc., No. 11-CV-0788-GPC (WVG), 2013 WL 485846 (S.D. Cal. Feb. 6, 2013)

Dec 01 2013

Key Insight: Where Defendant presented evidence that the cost of retrieving the requested information?not including the cost of attorney review or the time spent coordinating the production–was equal to the amount in controversy, the court concluded that the requests at issue were unduly burdensome and found that even where Plaintiff had explained the relevancy of the information sought, ?the expense associated with responding ? [was] too great when weighed against what is at stake in the litigation?; court?s analysis included consideration of inaccessibility based on the costs of production and noted that other discovery was available

Electronic Data Involved: ESI

Westdale Recap Props., Ltd. v. NP/I & G Wakefield Commons, LLC, No. 5:11-CV-659-D, 2013 WL 5424844 (E.D.N.C. Sep. 26, 2013)

Dec 01 2013

Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege

Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation

Electronic Data Involved: ESI

In re Frazer/Exton Dev., L.P., 503 B.R. 620 (Bankr. E.D. Penn. 2013)

Dec 01 2013

Key Insight: Court denied debtors? motion to reopen their bankruptcy cases in order to obtain relief from settlement agreement with debtors? largest creditor and plan of reorganization because — notwithstanding that creditor failed to search all potential sources of ESI and failed to produce responsive documents in what court described as ?incompetent and reckless discovery foul-up? that should not have occurred — debtors could not, as a matter of law, obtain the relief they sought under Rule 60 and it would therefore be futile for the court to reopen the record for the purpose of allowing the debtors to file a time-barred Rule 60 motion

Nature of Case: Debtors sought to reopen their bankruptcy cases in order to obtain relief from settlement agreement and plan of reorganization

Electronic Data Involved: ESI

Neustar, Inc. v. F5 Networks, Inc., No. C 12-02574 EJD, 2013 WL 1755489 (N.D. Cal. Apr. 24, 2013)

Dec 01 2013

Key Insight: In dispute over search terms and the appropriate date range for discovery, court cited Defendant?s declarations showing that Plaintiffs? proposed terms would result in a far greater volume of ESI to be reviewed and would triple the costs of production and found ?no reason? not to use Defendant?s proposed terms and reasoned that ?no search is ever perfect,? but that Defendant?s terms would ?likely yield sufficient documents?; date range was restricted to time period of the date of the contract to the present rather than Plaintiffs? proposal to begin two years before the agreement was formed

Nature of Case: Breach of licensing agreement

Electronic Data Involved: ESI

Mailhoit v. Home Depot USA, No. CV 11-03892 DOC (SSx), 2012 WL 12884128 (C.D. Cal. Aug. 29, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s Motion for an order precluding discovery of disaster recovery backup tapes, court considered the factors laid out in Rule 26(b)(2)(B)?s Committee Note (2006) and relevant case law and concluded that Defendant met its burden to establish inaccessibility where restoration and production would be ?extraordinarily expensive, both in restoration costs and attorney time? and that Plaintiff failed to establish good cause to compel production, citing as most important the failure to substantiate the claim that the emails would be important or useful to her case; court rejected argument that sampling must be conducted before a cost-benefit analysis could be undertaken by the court

Electronic Data Involved: Disaster Recovery Backup Tapes

Annex Books, Inc. v. City if Indianapolis, No. 1:03-cv-SEB-TAB, 2012 WL 892170 (S.D. Ind. Mar. 14, 2012)

Dec 01 2012

Key Insight: Where plaintiff was unable to produce requested ?bookkeeping data? in a manner that was usable by defendants despite significant efforts to do so (including retaining two computer forensic services, spending over $9500 on 30 hour of work, and purchasing QuickBooks Pro in an attempt to export the relevant data), the court found that plaintiff had demonstrated that the data was not reasonably accessible but also found that defendant had demonstrated good cause for seeking the information and ordered defendant to bear the costs of additional efforts (noting that it was ?unreasonable? for defendant to insist on production in QuickBooks format when incompatibility had been established)

Electronic Data Involved: ESI

Vietnam Veterans of Am. v. Central Intelligence Agency, No. 09-cv-0037 CW (JSC), 2012 WL 2375490 (N.D. Cal. June 22, 2012)

Dec 01 2012

Key Insight: In dispute over 24 40-year old magnetic tapes, 6 of which defendants had attempted to restore with only partial success (contents of 2 of the 6 tapes were recovered), the court found the information on the tapes to be not reasonably accessible in light of the significant but only partially successful recovery efforts but, recognizing the potential relevance of the contents, ordered that plaintiff would be allowed to attempt recovery (using outside vendors with sufficient security clearance) at their own expense and that if recovery was successful, the court would consider a cost-shifting motion

Electronic Data Involved: 40-year old magnetic tapes

Brocade Commc?ns Sys. v. A10 Networks, Inc., No. 10-CV-03428-LHK, 2012 WL 70428 (N.D. Cal. Jan. 9, 2012)

Dec 01 2012

Key Insight: Finding that plaintiff had shown good cause for requiring production of ?not reasonably accessible information,? the court granted plaintiff?s motion to inspect an individual defendant?s hard drive noting that such inspections had been allowed by other courts in cases of alleged misappropriation of trade secrets and further citing the relevance of the hard drive?s contents to the underlying claims, the inability to obtain the evidence elsewhere, and defendant?s inability to explain its statement that the hard drive in question had been ?recycled?; court held that plaintiff was ?not entitled to set the conditions of the inspection unilaterally nor select the person who will perform it? and ordered the parties to confer to agree on a protocol

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Contents of hard drive

Margolis v. Dial Corp., No. 12-CV-0288-JLS (WVG), 2012 WL 2588704 (S.D. Cal. July 3, 2012)

Dec 01 2012

Key Insight: Court denied Plaintiffs? request for a preservation order as to voicemail and instant messages where defendants had already sent litigation hold notices requiring preservation such that Plaintiffs? request was moot; Court further declined to enter preservation order as to backup tapes where defendants established that their preservation would impose a significant burden and that the contents were likely duplicative and where the court found that the backup tapes did not fall within the exception identified in Zubulake v UBS Warburg, 220 FRD 212 (S.D.N.Y. 2003).

Electronic Data Involved: Voicemail, instant messages, backup tapes

Indep. Mktg. Group, Inc. v. Keen, No. 3:11-cv-447-J-25MCR, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced ESI as documents compiled onto just a few PDF files that lacked metadata or searchable text by printing the ESI and then scanning it for production and resisted reproduction on the grounds of undue burden based on the estimated $10,000 cost of doing so, the court found that the ESI was not produced as ordinarily kept or in a reasonably usable format and further declined to find the information was not reasonably accessible or, if it was, that good cause had been shown to compel reproduction

Nature of Case: Breach of fiduciary duties, tortious interference with business relationships, fraud, breach of contract, conversion, and replevin

Electronic Data Involved: ESI

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