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

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

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

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

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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