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

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

Ameranth v. Pizza Hut, Inc., 2013 WL 636936 (S.D. Cal. Feb. 20, 2013)

Dec 01 2013

Key Insight: Court declined to compel production of ?the entire source code tree for each accused product? where it found that Plaintiff had not shown the need to fully understand all operations as opposed to ?only those aspects accused in the infringement claims? and where the alleged burden of production was great; court ordered that production of relevant portions of source code must include original files names and be in native format

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

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

Athome Care, Inc. v. The Evangelical Lutheran Good Samaritan Soc?y, No. 1:12-cv-053-BLW, 2013 WL 1819691 (D. Idaho Apr. 30, 2013)

Dec 01 2013

Key Insight: Court addressed Plaintiff?s motion to compel production of metadata and, noting that Defendant ?would have produced the requested metadata but for an inadvertent change to the creation date on certain documents,? indicated that the real question was ?how to resolve that mistake, which essentially requires the court to apply the Rule 26(b)(2)(C) balancing test;? court considered fact that Defendant ?created the problem? although not in bad faith (?accidents happen?) and further found that the burden of production was not ?all that great? and ordered the production of the requested metadata

Nature of Case: Breach of contract/licensing agreement

Electronic Data Involved: metadata

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

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

Wynmoor Cmty. Council, Inc. v. QBE Ins. Co., —F.R.D.—, 2012 WL 716480 (S.D. Fla. Mar. 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to allow forensic imaging of plaintiff?s computers for purposes of discovery where plaintiff?s production of ESI was very small, where plaintiff?s CIO admitted he had taken no efforts to retrieve any ESI, and where it was established that ESI may be present on plaintiff?s computers?possibly including electronic copies of hard copy documents which may have been shredded; court?s order called for court-appointed forensic expert to conduct examination and established other protocols to be followed

Nature of Case: Breach of insurance contract

Electronic Data Involved: ESI

Moore v. Kingsbrook Jewish Med. Ctr., No. 11-CV-3552 (KAM)(JO), 11-CV-3624 (KAM)(JO), 2012 WL 1078000 (E.D.N.Y. Mar. 30, 2012)

Dec 01 2012

Key Insight: District Court denied defendant?s objections to Magistrate Judge?s ruling denying request for forensic examination of plaintiffs? computers where plaintiffs each verified that they had conducted a search of all email accounts and produced all responsive emails and where both plaintiffs were told by their ISP that no further emails could be retrieved; court reasoned that there was no reason to discredit plaintiffs? representations and found that forensic examinations would be overly broad, intrusive, expensive, and would likely reveal irrelevant material

Nature of Case: Employment discrimination

Electronic Data Involved: Forensic examination of computers and email accounts

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