Tag: FRCP 26(b)(2)(C) Limitations

1
Collins v. ControlWorx, LLC (M.D. La. 2021)
2
Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)
3
Crossman v. Carrington Mortg. Servs., LLC, (M.D. Fla. May 4, 2020)
4
Shotwell, et al. v. Zillow Group Inc., et al. (Western Washington, 2019)
5
In re Verizon Wireless (D. Md., 2019)
6
Fair v. Communications Unlimited, Inc. (E.D. MO, 2019)
7
Beseke v. Equifax Information Services, LLC, No. 17-CV-4971-DWF-KMM (D. Minn, 2018)
8
Valdes v. Greater Naples Fire Rescue Dist. No. 2:17-cv-417-FtM-29CM (M.D. Fla. Sept. 7, 2018)
9
In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D. Ill. July 26, 2018)
10
Satmodo, LLC v. Whenever Communications, LLC, 3:17-cv-192-AJB-NLS (S.D. Cal. July 20, 2018)

Collins v. ControlWorx, LLC (M.D. La. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce audio recordings, hard drives, social media posts. Defendants’ Motion was granted. At least a portion of the data that Plaintiff was obligated to produce had been destroyed and/or missing due to a flood. After Plaintiff informed it of us, Defendant agreed to provide Plaintiff with an extension of time to correct his deficient discovery responses. Contingent on time for Plaintiff to allow his deposition to be retaken.

In his Response to Defendant’s Motion, Plaintiff did not assert that he complied with his discovery obligations but rather than production of the information sought was unreasonably cumulative or duplicative. For approximately 18 requests for production, Plaintiff failed to provide a response or objection, and failed to timely supplement his responses.

The Court granted largely Defendant’s Motion to Compel, ordering Plaintiff to respond to its requests for production, and supplement his responses to interrogatories, but also limiting Plaintiff’s responses to documents that would not require disclosure of attorney-client privilege and/or information that was not overly broad. Moreover, the Court ordered Plaintiff to appear for an additional supplemental deposition and also state that electronically stored information relevant to the litigation was actually destroyed (due to flooding) and submit the damaged storage devises for expert inspection. The

respective parties were responsible for their own attorney’s fees and costs regarding the discovery issues.

Nature of Case: Employment Discrimination, Family and Medical Leave Act

Electronic Data Involved: Hard Drives, Audio Recordings, Social Media Posts

Case Summary

Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)

Key Insight: Court granted defendants’ motion to compel plaintiff to produce Slack messages used as part of its internal business communications. Despite the potentially 30,000 Slack messages to review, the court found compelling the testimony from defendants’ forensic expert who stated there are a number of tools and software vendors that have streamlined review and production of Slack messages. Further, searches could be limited to certain Slack channels, users and custodians to very streamline the volume of messages for review. Thus, “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case – if the requests and searches are appropriately limited and focused.”

Nature of Case: Intellectual property

Electronic Data Involved: Slack messages

Case Summary

Crossman v. Carrington Mortg. Servs., LLC, (M.D. Fla. May 4, 2020)

Key Insight: Defendant moved to compel social media discovery from plaintiff. The court considered plaintiff’s objections based on relevancy, privacy, and vagueness. Plaintiff did not assert a proportionality argument. The court found that the discovery was relevant – “common sense dictates that information in [plaintiff’s] social medial . . . relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered at the hands of [defendant], including loss of enjoyment of life.” As to privacy, a confidentiality agreement suffices to protect plaintiff’s interests. As to vagueness, plaintiff’s counsel can “reasonably and naturally” interpret the requests in view of the claims and defenses through communication with opposing counsel. Lastly, an award of expenses was unwarranted since “reasonable minds can differ on the dispute.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Social Media

Case Summary

Shotwell, et al. v. Zillow Group Inc., et al. (Western Washington, 2019)

Key Insight: detailed stipulation of the discovery plan

Nature of Case: violation of the securities exchange act

Electronic Data Involved: all relevant discovery

Keywords: stipulation, discovery plan

View Case Opinion

Fair v. Communications Unlimited, Inc. (E.D. MO, 2019)

Key Insight: P subpoenaed for documents from a third-party after failing to receive the same information from defendant

Nature of Case: employment dispute

Electronic Data Involved: contracts/agreements, subcontractor agreements, financial information, e-mail

Keywords: subcontractor, independent contractor, technician, subpoena, third-party, undue burden on a person subject to subpoena

View Case Opinion

Beseke v. Equifax Information Services, LLC, No. 17-CV-4971-DWF-KMM (D. Minn, 2018)

Key Insight: accessibility of data

Nature of Case: Violations of the FCRA

Electronic Data Involved: information related to similar lawsuits and consumer complaints

Keywords: data, searchable, accessible, access*, undue burden,

View Case Opinion

Valdes v. Greater Naples Fire Rescue Dist. No. 2:17-cv-417-FtM-29CM (M.D. Fla. Sept. 7, 2018)

Key Insight: forensic examination should be ?the exception, not the rule.?

Nature of Case: employment, FMLA

Electronic Data Involved: text messages, deleted messages, lost devices, forensic examination

Keywords: social media, text messages, forensic examination, FMLA

View Case Opinion

In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D. Ill. July 26, 2018)

Key Insight: Undue burden or cost of discovery alleged by defendant.

Nature of Case: antitrust class action

Electronic Data Involved: ESI searches upon 12 custodians

Keywords: Has not made a threshold showing, does not satisfy the rule 26(b)(2)(C) factors.

View Case Opinion

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