FRCP 26(b)(2)(C) Limitations – Page 14 – Electronic Discovery Law

Graff v. Haverhill N. Coke Co., No. 1:09-cv-670, 2011 WL 1630045 (S.D. Ohio Mar. 24, 2011)

Dec 01 2011

Key Insight: Where, by comparing the time taken to respond to other requests, defendant established that responding to the requests at issue would be unduly burdensome (requiring an estimated 1,000 to 1,600 hours) and where plaintiff failed to provide ?any particular showing ? of the benefit to be obtained from such information?, the court denied plaintiff?s motion to compel

Electronic Data Involved: ESI, email

Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2011 WL 2297661 (D. Colo. June 9, 2011)

Dec 01 2011

Key Insight: Court denied request for taxation of costs related to conversion of documents into electronic format for discovery purposes where defendant failed to establish that the conversion costs were ?necessarily incurred in the case preparation?; court denied motion for taxation of costs related to creation of secure database in furtherance of responding to a legitimate discovery request where the court was not authorized to award such costs pursuant to the relevant statute and where it was unaware of authority allowing adjustments to the division of costs based on undue burden, an argument that was available ?during the discovery process?

Electronic Data Involved: Conversion of ESI

Robotic Parking Sys., Inc. v. City of Hoboken, 2010 WL 324524 (D.N.J. Jan. 19, 2010) (Unpublished)

Dec 01 2010

Key Insight: Court granted intervenor?s motion for a protective order where plaintiff (intervenor?s direct competitor) sought access to defendant?s garage operating computers possibly containing intervenor?s trade secrets but denied request to prevent access entirely where such access was necessary for plaintiff?s case, where there was no showing of irrelevance or burden, and where intervenor?s concerns were ?too speculative to warrant non-disclosure?; court ordered parties to split cost of software necessary for defendant to view forensic images produced by plaintiff where plaintiff sought to use the images at trial, where defendant had no way to view the court ordered production otherwise, and where the parties failed to properly discuss and agree upon discovery issues, including the cost of production, pursuant to local rule

Nature of Case: Breach of contract

Electronic Data Involved: ESI, source code

Mack v. HG Gregg, Inc., 2010 WL 342545 (S.D. Ind. Jan. 29, 2010)

Dec 01 2010

Key Insight: Where plaintiff moved to compel re-production of electronic spreadsheet in its ?original format? i.e. without a lock that prevented the manipulation of data, the court rejected defendants? arguments that plaintiffs request be denied because 1) the original format was protected work product, 2) the parties never agreed to a format of production, and 3) re-production would be unduly burdensome and granted plaintiffs? motion to compel

Nature of Case: Breach of contract

Electronic Data Involved: Spreadsheet

Cartel Asset Mgmt. v. Ocwen Fin. Corp., 2010 WL 502721 (D. Colo. Feb. 8, 2010)

Dec 01 2010

Key Insight: Where defendants bore the burden of persuasion when asserting that ESI was inaccessible because of undue burden or cost and where defendants? supported their claim of inaccessibility with only one declaration which lacked specific information regarding defendants? storage practices, the number of back-up or archival systems that would need to be searched, or defendants? capability to retrieve information from those back-up or archival systems, the court denied defendants? Motion for a Protective Order

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition, unjust enrichment and fraud

Electronic Data Involved: ESI

Sunnen Prods. Co. v. Travelers Casualty and Surety Co. of Am., 2010 WL 743663 (E.D. Mo. Feb. 25, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought discovery regarding similar insurance policies, claims and lawsuits of other insureds, court found the information ?discoverable? and rejected defendant?s claims of undue burden based on alleged inability to conduct an electronic search citing a prior court decision (involving defendant and similar claims of burden) for the proposition that plaintiff would not be denied discovery because of defendant?s election ?to have inadequate mens [sic] of accessing data?

Nature of Case: Insurance litigation

Electronic Data Involved: ESI

Edelen v. Campbell Soup Co., 2010 WL 774186 (N.D. Ga. Mar. 2, 2010)

Dec 01 2010

Key Insight: Court ordered 4 pages of privileged documents be returned to defendants where the pages were privileged on their face and inadvertently produced (4 pages of privileged material were produced among 2000 pages and the documents were subject to review by three attorneys prior to production) and where counsel immediately sought their return upon discovery of their production; court ordered narrowing of search terms and fewer custodians upon defendants? objection to plaintiffs? proposed scope (including 55 custodians and 50 search terms) where plaintiff failed to respond to the objection within the ten day period provided by the court

Nature of Case: Employment litigation

Electronic Data Involved: ESI, privileged materials

In re Subpoenas, 692 F.Supp.2d 602 (W.D.Va. 2010)

Dec 01 2010

Key Insight: Where recipient of government subpoenas refused to comply on grounds of unreasonableness and burden, court approved government?s offer to reduce number of custodians from 13 to 3 (out of a workforce of approximately 72,000) and ordered recipient to produce live emails and snapshot of emails from backup tapes for each of the years between 2002 and 2008 which, the court noted, had been preserved for other litigation

Nature of Case: Government investigation

Electronic Data Involved: Email, snapshot of email from backup tapes

Covad Commc?n Co. v. Revonet, Inc., 267 F.R.D. 14(D.D.C. 2010)

Dec 01 2010

Key Insight: Court declined to compel production of non-email ESI in native format where defendant previously produced the information sought in hard copy, reasoning that native production is not required by the rules and that the documents, previously produced in hard copy, were in a sufficiently usable format absent a showing that the metadata would ?yield an answer that the hard copy will not?; court also recognized obligation to seek ?just, speedy, and inexpensive? adjudication and to limit burdensome discovery where defendant represented significant hardship to re-produce in native format

Nature of Case: Misappropriation and conversion of trade secret information

Electronic Data Involved: ESI

In re IKB Deutsche Industrie Bank AG, 2010 WL 1526070 (N.D. Ill. Apr. 8, 2010)

Dec 01 2010

Key Insight: Denying third-party corporation?s motion to quash a subpoena, court rejected corporation?s claims of undue burden where the discovery sought was relevant to the foreign litigation and where the support for claims of burden was conclusory and failed to sufficiently identify the basis for the corporation?s objection or ?connect a dollar amount to the particular tasks that would be necessary to provide the requested information? and thus, the court was ?effectively prevented from making a meaningful determination as to whether the financial costs is unreasonable?

Nature of Case: Foreign litigation claiming $1.5 billion in damages arising from “Put Option Agreement”

Electronic Data Involved: ESI

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