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

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Indep. Mktg. Group, Inc. v. Keen, No. 3:11-cv-447-J-25MCR, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)
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Kolon Indus. v. E.I. Du Pon De Nemours & Co., No. 3:11cv622, 2012 WL 614137 (E.D. Va. Feb. 23, 2012)
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Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)
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Wynmoor Cmty. Council, Inc. v. QBE Ins. Co., —F.R.D.—, 2012 WL 716480 (S.D. Fla. Mar. 5, 2012)
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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)
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Thermal Design, Inc. v. Guardian Building Prods., Inc., No. 08-C-828, 2011 WL 1527025 (E.D. Wis. Apr. 20, 2011)
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Boucher v. First Am. Title Ins. Co., No. C10-199RAJ, 2011 WL 5299497 (W.D. Wash. Nov. 4, 2011)
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Wood v. Capital One Servs., LLC, No. 5:09-CV-1445, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011)
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Doyle v. Gonzales, 2011 WL 611825 (E.D. Wash. Feb. 10, 2011)
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Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL 2551546 (E.D. Cal. June 24, 2011)

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

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)

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)

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

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

Boucher v. First Am. Title Ins. Co., No. C10-199RAJ, 2011 WL 5299497 (W.D. Wash. Nov. 4, 2011)

Key Insight: Following discussion of the breadth of original requests and subsequent narrowing of scope, court addressed duty of defendant to produce evidence from third-party who provided defendant with mortgage-related documents and from independent agents and ordered production from those parties where evidence indicated that at least some agents had contractually agreed to produce documents thus evidencing defendant?s control and where provider of mortgage-documents did not object to disclosure

Nature of Case: Class action

Electronic Data Involved: ESI from third parties

Wood v. Capital One Servs., LLC, No. 5:09-CV-1445, 2011 WL 2154279 (N.D.N.Y. Apr. 15, 2011)

Key Insight: Court denied plaintiff?s motion to compel additional discovery, including ?sweeping searches of ESI using suggested search terms? where, following significant analysis of the rule of proportionality (26(b)(2)(C)), the court determined that the ?minimally relevant information to be developed through the discovery? was ?far outweighed by the burden? associated with it, but left open plaintiff?s option to bear the cost of the discovery himself

Nature of Case: Violations of Fair Debt Collection Practices Act

Electronic Data Involved: ESI

Doyle v. Gonzales, 2011 WL 611825 (E.D. Wash. Feb. 10, 2011)

Key Insight: Where a small town with ?limited financial and technological resources? sought a protective order to allow phased discovery of ESI in light of the alleged burden and expense of the requested discovery, the court granted in part the defendant?s motion and crafted a protective order which established the search terms to be employed and allowed plaintiff the opportunity to provide suggestions and which provided that if the search returned an unreasonable amount of documents that plaintiff?s counsel should assist in ?restructuring the search? to reduce that number

Electronic Data Involved: ESI

Couch v. Wan, No. 1:08cv1621 LJO DLB, 2011 WL 2551546 (E.D. Cal. June 24, 2011)

Key Insight: After defendant reported that the estimated cost of searching its electronically stored information using the search terms provided by plaintiff would be ?at least $54,000? because of the need to hire an outside contractor to assist, the court found that the discovery requests imposed a burden on the defendant that warranted cost shifting and ordered the parties to met and confer to determine an appropriate cost sharing agreement; Reconsideration denied in Couch v. Wan, No. CV F 08-1621 LJO DLB, 2011 WL 291118 (E.D. Cal. July 20, 2011)

Nature of Case: Violations of their free speech rights and violations of the Racketeer Influenced Corrupt Organizations Act (“RICO”)

Electronic Data Involved: ESI

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