FRCP 26(b)(2)(b) “Not Reasonably Accessible” – Page 7

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

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

Point 4 Data Corp. v. Tri-State Surgical Supply & Equip., Ltd., No. 11-CV-726 (CBA), 2012 WL 3705001 (E.D.N.Y. Aug. 27, 2012)

Dec 01 2012

Key Insight: Where, seeking data related to the number of times and when defendant logged onto plaintiff?s accounting system, defendant paid for an expert to restore damaged media but found no responsive data thereon and where plaintiff thereafter sought access to the damaged media to conduct its own search, the court indicated it would not allow a fishing expedition, but that if plaintiff wanted to bear the costs of duplicating defendant?s restoration and search efforts, it could retain a neutral third-party expert to do so, limited to a search of specifically identified folders; as to an inoperable drive that the parties previously agreed would be considered inaccessible, court would allow plaintiff to pay for neutral third party?s examination to perform a limited review; court declined to compel affidavit from defendant indicating specific steps to locate and preserve relevant data

Electronic Data Involved: Hard drive and copies of same

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

McNulty v. Reddy Ice Holdings, Inc., 2011 116892 (E.D. Mich. Jan. 13, 2011)

Dec 01 2011

Key Insight: Where defendant preserved 4 terabytes of electronically stored information and 744 boxes of paper documents to be reviewed for production, court cited Rule 26(b)(2)(B) for the proposition that burdensome discovery should be limited but found that plaintiff had good cause for requesting relevant information and ordered the parties to meet and confer to develop search terms or objective search criteria for identifying responsive ESI as well as to develop a search plan for the hard copy

Nature of Case: RICO

Electronic Data Involved: ESI, hard copy

Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350 (W.D.N.Y. 2011)

Dec 01 2011

Key Insight: Where, in response to the at-issue request for production, defendant failed to identify its archives as a source of information that it would not search or to object to plaintiff?s request and, in fact, represented that it would produce responsive information, court found the information sought was relevant, that plaintiff?s motion was timely, and ordered defendant to search its archives upon rejecting defendant?s untimely assertions of undue burden and cost

Nature of Case: Breach of contract, claims under the Communications Act, and various tort claims

Electronic Data Involved: Archived emails

Hudson v. AIH Receivable Mgmt. Servs. LLC, No 10-2287-JAR-KGG, 2011 WL 1402224 (D. Kan. Apr. 13, 2011)

Dec 01 2011

Key Insight: Where defendant, ?a small company with 13 employees? who presented evidence that it was not profitable, objected to discovery pursuant to 26(b)(2)(C)(iii) based on an estimated cost of $2,630 to comply with plaintiff?s request (which included, in part, the cost of necessary software to complete the review), the court declined to shift the cost of production but stated that defendant could choose to produce un-reviewed ESI to plaintiff, thus shifting the cost of software necessary for review, but if defendant wished to review the data first, it would bear the costs of doing so

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Thermal Design, Inc. v. Guardian Building Prods., Inc., No. 08-C-828, 2011 WL 1527025 (E.D. Wis. Apr. 20, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel searching of all archived email and shared network drives where significant ESI had already been produced; where defendant established that the additional searching would take several months and result in an additional cost of $1.9 million dollars, plus an additional $600,000 to review; and where plaintiffs offered little evidence to justify the burden and argued instead that because defendant was a ?series of large companies with considerable resources,? the burden was not too great; court specifically reasoned ?Courts should not countenance fishing expeditions simply because the party resisting discovery can afford to comply.?

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., No. 09 C 3789, 2011 WL 1897213 (N.D. Ill. May 17, 2011)

Dec 01 2011

Key Insight: Where plaintiff sought reimbursement of the costs of producing ESI from backup tapes but did not seek judicial intervention to narrow the requests prior to production, court considered eight factors and ruled that plaintiff and defendants should split the costs; the eight factors considered were: 1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties’ resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8) the relative benefits to the parties of obtaining the information.

Nature of Case: Legal malpractice

Electronic Data Involved: ESI on backup tapes

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