FRCP 26(b)(2)(C) Limitations – Page 10 – Electronic Discovery Law

W. Penn. Elec. Employees Pension Fund v. Alter, No. 2:09-cv-04730-CMR, 2013 WL 4803564 (E.D. Pa. June 26, 2013), approved and adopted in substantial part, 2013 WL 4799061 (E.D. Pa. Sep. 6, 2013)

Dec 01 2013

Key Insight: In this Report and Amended Recommended Order, Special Discovery Master agreed with plaintiffs that they should have the opportunity to confirm, though inspection by neutral e-discovery vendor already retained by parties, defense counsel?s representations as to contents of individual defendant?s belatedly-disclosed hard drive, because without the requested examination, there was no way to know if, in fact, hard drive contents were duplicative of data already produced by another party as the individual defendant claimed; Special Master found request was not unreasonable given the centrality of the defendant in events giving rise to the lawsuit, the unsubstantiated nature of defense counsel?s claim that the data was duplicative, that the defendant had provided only limited discovery to plaintiffs, that the defendant, through his counsel, had previously denied possession of any responsive data when the hard drive had been in his home and responsive documents were on his personal computer, much time and money had been expended in the effort to obtain the documents from other sources, and plaintiffs should not be expected to accept without question the claim that the defendant ?simply forgot? he had received company documents prior to his departure; district court subsequently adopted recommendation but modified deadlines and division of costs

Nature of Case: Securities class action

Electronic Data Involved: Material on hard drive belatedly disclosed by individual defendant

Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sep. 23, 2013)

Dec 01 2013

Key Insight: Court sustained District’s objection that it did not have duty to produce documents from persons no longer associated with the District who were not parties to the litigation, as plaintiff failed to establish that District had the necessary control over requested documents or that District had legal right to obtain such documents on demand from former District board members, staff or employees; court further denied motion to compel forensic mirror imaging of computers and other electronic devices personally owned by current and former District board members, employees and staff, as District already produced forensic mirror images of two District computers, District lacked possession or control of personally-owned computers, there was no showing that any personally-owned computers of board members, employees and staff were used by those persons for District business, and court had significant concerns about intrusiveness of request and privacy rights of individuals to be affected

Nature of Case: Dispute over water rights

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

Advanced Tactical Ordnance Sys. LLC v. Real Action Paintball, Inc., No. 1:12-CV-296, 2013 WL 682848 (N.D. Ind. Feb. 25, 2013)

Dec 01 2013

Key Insight: Court granted motion to compel and ordered production of a ?complete copy? of Defendant?s database, despite noting that the request appeared ?facially intrusive,? where the information was ?highly relevant? to the claims in the case, where Defendant failed to provide sufficient information regarding the allegedly proprietary contents of the database, and where an attorneys? eyes only designation was sufficient to protect any trade secrets, etc.

Electronic Data Involved: Database

Thornton v. Morgan Stanley Smith Barney, LLC, No. 12-CV-298-JED-FHM, 2013 WL 1890706 (N.D. Okla. May 3, 2013)

Dec 01 2013

Key Insight: Where defendant sought to shift costs based on the expected expense of reviewing and producing the emails which was estimated to be more than $500,000, the court acknowledged that cost could be a legitimate basis for cost shifting under Rule 26(b)(2)(C), but found that the burden of the requested discovery did not outweigh its likely benefit and was not disproportionate to the case and also noted that the defendant had not established that ?a particular level of review is necessary in this case or that a ?claw back? agreement or [FRE] 502 order would not reduce or eliminate the estimated costs?

Electronic Data Involved: Email

Lee v Stonebridge, No. 11-cv-43 RS (JSC), 2013 WL 3889209 (N.D. Cal. July 30, 2013)

Dec 01 2013

Key Insight: Court denied Defendant?s motion to conduct a forensic inspection of Plaintiff?s iphone where there was no dispute that the at-issue phone was not the phone that received the at-issue text message and where Plaintiff?s expert indicated that the relevant iphone had been backed up on plaintiff?s personal computer; court denied motion to conduct a forensic inspection of Plaintiff?s personal computer where Defendant failed to demonstrate that the information sought was not reasonably accessible through other sources (e.g., the co-defendant that allegedly sent the at-issue text message), where plaintiff had offered to search for whatever information defendant sought, where plaintiff had already provided considerable data, and where Defendant?s request was essentially a fishing expedition; court reasoned that ?absent a showing of misconduct? raising questions regarding the completeness of Plaintiff?s expert?s search, no inspection by Defendant was warranted and ordered the parties to cooperate to create a protocol for plaintiff?s expert to use

Electronic Data Involved: iphone, contents of personal computer, text-message

Custom Hardware Eng?g & Consulting, Inc. v. Dowell, No. 4:10CV00653 ERW, 2011 WL 10496 (E.D. Mo. Jan. 3, 2012)

Dec 01 2012

Key Insight: Relying heavily on Ameriwood Industries v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291 (E.D. Mo. Dec. 27, 2006), court ordered the discovery of ESI on defendant?s computers in accordance with three-step procedure: 1) imaging of hard drive by forensic expert, 2) recovery of ESI from that image, 3) defense counsel?s review and production of responsive non-privilege information; upon parties? disagreement regarding search terms to be utilized in step three, court rejected defendant?s arguments that plaintiff?s proposed terms would result in an ?unreasonable number of irrelevant results? and the production of privilege information and also rejected defendant?s proposed search terms as too narrow, where defendant proposed that only exact matches, including in capitalization and phrasing, be considered

Nature of Case: Copyright infringement, trade secret misappropria-tion, breach of contract, breach of fiduciary duty, and other related claims

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

Kolon Indus. v. E.I. Du Pon De Nemours & Co., No. 3:11cv622, 2012 WL 614137 (E.D. Va. Feb. 23, 2012)

Dec 01 2012

Key Insight: Court granted defendant?s motion to compel production of ?computer images and dumpster files? for 29 custodians upon finding that the information sought was relevant and that production would not be unduly burdensome

Nature of Case: Patent Infringement

Electronic Data Involved: Computer images and “dumpster files”

Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)

Dec 01 2012

Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs

Nature of Case: civil rights and employment law

Electronic Data Involved: ESI

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