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

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

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

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

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

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

General Elec. Co. v. Wilkins, No. 1:10-cv-00674, 2012 WL 570048 (E.D. Cal. Feb. 21, 2012)

Dec 01 2012

Key Insight: Addressing whether GE would be required to restore, search, and produce responsive contents of hundreds of backup tapes, court found that the data on the backup tapes was not reasonably accessible because of the significant expense of restoring and searching the tapes and further found that defendant did not show good cause to compel restoration and production, particularly where defendant failed to provide any evidence of the presence of unique, responsive documents on the tapes

Nature of Case: patent infringement

Electronic Data Involved: backup tapes

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., —F. Supp. 2d—, 2012 WL 4888473 (D.D.C. Oct. 16, 2012)

Dec 01 2012

Key Insight: Where FTC sought to compel defendant to search for and produce responsive ESI on backup tapes, the court resolved the question of what standard must be applied to properly analyze the producing party?s claims of burden (Rule 26(b)(2)(B) ?good cause? to overcome the burden shown by the responding party v. the standard established in FTC v. Texaco Inc., 555 F.2d 862 (DC Cir 1977) ?a showing that compliance with the subpoena ?threatens to unduly disrupt or serious hinder normal operations of a business??) and determined that in light of the narrowed request, the defendant had not established a sufficient burden and thus ordered defendant to conduct a search of the at-issue backup tapes and to produce any non-privileged materials

Nature of Case: Administrative Subpoena

Electronic Data Involved: Backup tapes

Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950(LBS)(JCF), 2012 Wl 3964742 (S.D.N.Y. Sept. 10, 2012)

Dec 01 2012

Key Insight: Court addressed in depth a myriad of important discovery issues (e.g. ?phasing, sampling, and proportionality?); as to the question of reasonable accessibility, court clarified that a showing of undue burden alone is insufficient to establish inaccessibility and that the alleged burden must be ?associated with some technological feature which inhibits accessibility? and, noting that defendant?s databases were not inaccessible because of such a feature, found that rule 26(b)(2)(B) presented ?no barrier? to discovery of the at-issue databases; turning to the question of proportionality pursuant to Rule 26(b)(2)(C), court focused on section (iii) and, after discussing options to lessen Defendant?s burden, including sampling or a ?document dump,? found that most ESI was subject to production for reasons including the importance of the information to the case, the high financial stakes and Defendant?s ?ample resources,? the importance of the issues being litigated, and Defendant?s exaggeration of the burden and the inadequacy of proposed alternatives

Nature of Case: Putative class action asserting gender discrimination by employer

Electronic Data Involved: Database content

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