FRCP 26(b)(2)(C) Limitations – Page 15 – Electronic Discovery Law

Eurand, Inc. v. Mylan Pharm., Inc., 266 F.R.D. 79 (D. Del. 2010)

Dec 01 2010

Key Insight: Evaluating the adequacy of plaintiff?s search for a specific category of information, the court noted that the test to determine the appropriateness of a search is whether the search ?could?have been expected to produce the information requested?, determined that the information sought was likely to be found in the emails of the inventors of a specific patent, and ordered plaintiff to search the emails of the relevant inventors within a date range prescribed by the court; opinion included brief discussion of keyword searching and noted, “[n]either lawyers nor judges are generally qualified to opine that certain search terms or files are more or less likely to produce information than those keywords or data actually used or reviewed.”

Nature of Case: Patent litigation

Electronic Data Involved: Emails

Phillip M. Adams & Assoc., LLC v. Fujitsu Ltd., 2010 WL 1901776 (D. Utah May 10, 2010)

Dec 01 2010

Key Insight: Addressing a number of issues related to the format and organization of plaintiff?s production and a motion to compel plaintiff?s response to interrogatories, court ordered the production of ESI in its native format where plaintiff failed to object to a request for the same but, where native production was not specified, plaintiff was allowed to select the form of production; unable to determine whether the burden of production of computer data from all computers used by plaintiff over a period of many years would outweigh the value of production, court ordered plaintiff to produce a detailed inventory of each computer and to allow sampling of one or two computers of defendant?s choice in order to determine the need for additional discovery

Nature of Case: Patent infringement

Electronic Data Involved: ESI, hard drives

Ross v. Abercrombie & Fitch Co, 2010 WL 1957802 (S.D. Ohio May 14, 2010)

Dec 01 2010

Key Insight: Where defendant resisted plaintiff?s motion to compel additional searching based upon having already conducted an initial, agreed-upon keyword search and upon unsubstantiated claims that additional searching would be unduly burdensome regardless of prior efforts, court rejected defendant?s arguments absent a sufficient showing of burden, granted plaintiff?s motion, and ordered the parties to meet and confer to reach agreement regarding the searches

Nature of Case: Securities class action

Electronic Data Involved: ESI

Mt. Hawley Ins. Co. v. Felman Prod. Inc., 2010 WL 3294389 (S.D. W. Va. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendants sought production from 10 foreign custodians alleged to be agents of the plaintiff, the court conducted an extensive review of evidence as to each persons? involvement with the plaintiff and the applicable case law from several jurisdictions and found as to 9 of the custodians that they maintained relevant information and that plaintiff exercised sufficient control of that information, in light of the custodian?s significant involvement with plaintiff?s business, that the information should be produced; in so holding, the court rejected plaintiff?s arguments that the discovery sought had already been produced, was not under their control, was cumulative and duplicative, and was unduly costly and burdensome to produce

Nature of Case: Claims arising from failure of tranformer for silicomanganese furnace

Electronic Data Involved: ESI in custody of foreign custodians

David v. Signal Int., LLC, 2010 WL 2723180 (E.D. La. July 6, 2010)

Dec 01 2010

Key Insight: Court declined to hold defendant in contempt for its unilateral redactions of alleged personal and confidential information but, upon evidence of over-redacting, ordered plaintiffs to identify approximately 3000 documents (a number provided by plaintiffs) to be sent to defendant for verification of proper redacting and for the parties to confer to fashion an appropriate protective with regard to the documents redacted and/or withheld on the ground proprietary or business confidentiality privilege

Nature of Case: Class action

Electronic Data Involved: ESI

Biax Corp. v. Nvidia Corp., 2010 WL 3777540 (D. Colo. Sept. 21, 2010)

Dec 01 2010

Key Insight: In an opinion addressing numerous discovery issues, the court granted in part plaintiff?s motion to compel and ordered the parties to submit a status report, preferably jointly, proposing a discreet number of proposed custodians and search terms, and to submit a joint-cost sharing agreement ?for the hefty cost of searching electronic files as represented by [defendant] with an accompanying affidavit in support of the anticipated costs?; court reasoned in footnote that ?justice require[ed]? cost sharing in light of the expense of searching electronic files and in light of the amount of documentation already produced by the defendant

Nature of Case: Patent infringement

Electronic Data Involved: ESI

BBVA Compass Ins. Agency, Inc. v. Olson, 2010 WL 4004516 (D. Colo. Oct. 12, 2010)

Dec 01 2010

Key Insight: Where plaintiff presented evidence that searching for the information requested by defendants could exceed 400 hours and where the request was duplicative and other sources of information existed, the court found that ?the burden on plaintiff ? is heavier than Defendants? alleged need for the files warrants? and granted plaintiff?s request for a Protective Order

Nature of Case: Claims for misappropriation of trade secrets, breach of fiduciary duty, breach of the duty of loyalty and breach of contract, among others

Electronic Data Involved: ESI/customer files

Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519 (Mo. App. Ct. 2010)

Dec 01 2010

Key Insight: Where trial court ordered a single plaintiff to produce all information in his possession or control that had been posted to a relevant web forum and where that plaintiff complied in part but withheld information that could have uniquely identified users and unposted private messages, the trial court abused its discretion in striking all plaintiffs? pleadings and dismissing their claims as a sanction for discovery violations where the request for discovery was overly broad in the first place and where the sanction imposed for failing to respond to such an overly broad request was ?unjust?

Nature of Case: Claims arising from city’s approval of development of property

Electronic Data Involved: ESI posted to website and electronic forum

In re Urethane Antitrust Litig., 2010 WL 4226214 (D. Kan. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where plaintiffs sought a protective order to preclude discovery of a certain category of information, court denied their motion for a myriad of reasons, including rejecting arguments of undue burden and expense where the arguments were ?largely conclusory and unsupported? and where plaintiffs evidence actually established that the discovery could be reasonably undertaken as the result of work done while responding to other requests and reasoned that while responding would ?take time?, it would not be an ?inordinate? amount

Nature of Case: Price fixing, market-allocation conspiracies

Electronic Data Involved: ESI related to criminal investigation of some plaintiffs

Smith v. Home Depot USA, Inc., 2010 WL 4641157 (D. Idaho Nov. 5, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to compel ?event description? information contained in defendant?s database to correspond with a previously produced spreadsheet regarding past claims and rejected defendant?s objections of irrelevance and undue burden, particularly in light of testimony which indicated the relative ease of collection and production based on the efforts previously undertaken in creating the related spreadsheet

Nature of Case: Product liability

Electronic Data Involved: ESI contained in database

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