FRCP 26(b)(2)(C) Limitations – Page 13 – Electronic Discovery Law

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

Dec 01 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

Murphy v. Target Corp., No. 09cv1436-BEN (WMc), 2011 WL 2728217 (S.D. Cal. July 12, 2011)

Dec 01 2011

Key Insight: Where target indicated the requested discovery would require the expenditure of approximately 146 hours of employees? time and cost $4,360 and also argued that the requested discovery would invade employees? privacy and was minimally relevant, court found that the burden to Target did not outweigh the likely benefit, rejected defendant?s arguments regarding privacy and relevance, and granted plaintiff?s motion to compel

Nature of Case: Employment Litigation

Electronic Data Involved: ESI

Madere v. Compass Bank, No. A-10-CV-812 LY, 2011 WL 5155643 (W.D. Tex. Oct. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel production of email requiring restoration of backup tapes where defendant?s expert averred that it would cost over $270,000 and require hundreds of hours to accomplish, where plaintiff?s expert could not ?ascertain an estimate for the actual cost,? and where ?even if the actual cost of restoring the backup tapes was only a fraction? of the estimated amount, it ?would still outweigh the amount [Plaintiff] seeks to recover?

Nature of Case: Violation of FMLA

Electronic Data Involved: Emails on backup tapes

Greater Lakes Ambulatory Surgical Ctr., PLLC v. State Farm Mut. Ins. Co., No. 11-11003, 2011 WL 5245141 (E.D. Mich. Nov. 3, 2011)

Dec 01 2011

Key Insight: Where defendant indicated that the requested records were not readily searchable because the information sought was not tracked, that compliance with plaintiffs? request would require manual review of ?hundreds of thousands of claims,? that the claim files were not stored as searchable images, and that the cost of reviewing the claim files could eclipse $100,000, the court concluded that defendant had demonstrated undue burden and denied plaintiffs? motion to compel; court also indicated that plaintiffs could have pursued alternative avenues of discovery where defendant indicated that a third party maintained the information requested but failed to do so and that defendant should not be ?required to engage in labor and resource intensive discovery . . . merely because Plaintiff?s failed to subpoena a third-party . . . .?

Nature of Case: Suit arising from Defendant’s refusal to pay certain charges for services provided to insured

Electronic Data Involved: ESI

United States v. AT&T, Inc., No. 1:11-cv-01560, 2011 WL 5347178 (D.D.C. Nov. 6, 2011)

Dec 01 2011

Key Insight: Court denied non-party?s motion to quash defendant?s subpoena where defendant adequately narrowed its request and where the non-party failed to establish that the burden of responding was undue, including by failing to provide particulars related to the expected burden of responding; court?s analysis closely followed standard set forth in Rule 26(b)(2)(C)(iii)

Nature of Case: DOJ investigation

Electronic Data Involved: ESI

In re Google Litig., No. C 08-03172 RMW (PSG), 2011 WL 6113000 (N.D. Cal. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where third party objected to plaintiff?s subpoena as overly broad and burdensome but nevertheless undertook a limited search which resulted in the identification of zero documents, but where plaintiff argued the search was halfhearted and that additional searching was required, the court took notice of objective of the recently adopted Model Order on E-Discovery in Patent Cases and indicated its applicability to third parties and thereafter ordered plaintiff to provide the non-party with five search terms to be utilized in additional searching and that plaintiff would bear the costs of any terms beyond the limits agreed to by the parties or granted by the court

Nature of Case: Patent infringement

Electronic Data Involved: ESI

In re Nat?l Assoc. of Music Merchs., Musical Instruments & Equip. Antitrust Litig., MDL No. 2121, 2011 WL 6372826 (S.D. Cal. Dec. 19, 2011)

Dec 01 2011

Key Insight: Court denied motion to compel defendant to re-run searches using commonly used acronyms where defendant had already run search terms that had been agreed upon by the parties and plaintiff had ample opportunity to ask for the abbreviations to be used and where the court determined that he burden of re-searching outweighed the benefit; where plaintiff was willing to bear the cost of ?running the searches and conducting the review in their request,? however, court would permit further search of specified custodians for one specifically identified acronym

Nature of Case: Antitrust

Electronic Data Involved: ESI

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

Dec 01 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

Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)

Dec 01 2011

Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose

Nature of Case: Patent infringement

Electronic Data Involved: Emails

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

Dec 01 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

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