FRCP 26(b)(2)(C) Limitations – Page 17 – Electronic Discovery Law

Colony Ins. Co. v. Danley, Inc., 2010 WL 3894203 (D. Me. Oct. 4, 2010)

Dec 01 2010

Key Insight: Where defendants? counsel refused to electronically search its files for potentially responsive information, the court found the data ?not reasonably accessible? and denied plaintiffs? motion to compel the search where defendants? counsel had already spent 30 hours searching and had produced or logged the documents discovered in that search, and where plaintiffs? offered ?no reason to believe that further responsive documents exists or, if any do, that they are not cumulative??; ?alternatively? court denied the motion ?pursuant to 26(b)(2)(c)? where ?the burden ? of the proposed discovery outweighs its likely benefit?

Electronic Data Involved: Electronic contents of files of defendants’ counsel

Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., 2010 WL 4337388 (W.D. Pa. Oct. 27, 2010)

Dec 01 2010

Key Insight: Where defendants sought to avoid searching and producing emails and related documents maintained by defendants? CEO and CTO and argued that they had already produced 5.5 million pages and that the information sought was cumulative and therefore imposed an undue burden, the court noted defendants admission that they had not searched or reviewed the materials of the relevant executives and found that plaintiff had shown the likelihood that such a search could lead to the discovery of relevant evidence and ordered the executives? materials to be searched and if responsive, produced

Electronic Data Involved: Executives’ ESI

Dana Ltd. v. American Axle & Mfg. Holdings, Inc., 2010 WL 5394885 (W.D. Wash. Dec. 22, 2010)

Dec 01 2010

Key Insight: Court granted defendant?s motion to clarify the agreed preliminary injunction order where, following entry of the agreement, defendant determined that the broad language addressing preservation created a cost prohibitive obligation that was broader than necessary to protect the plaintiff and agreed to enter an order reflecting defendant?s proposed revision which was more specific regarding what must be preserved

Electronic Data Involved: ESI

Lapin v. Goldman Sachs & Co., 2009 WL 222788 (S.D.N.Y. Jan. 23, 2009)

Dec 01 2009

Key Insight: Where defendants previously produced documents to regulators without any limitations as to subject matter, court ordered parties in present litigation to meet for at least four hours to discuss search terms intended to identify the relevant documents for production to plaintiff from amongst those already produced; where plaintiff sought documents beyond those previously produced to regulators, court found the request likely more burdensome than beneficial and ordered plaintiff to articulate need for additional documents and to consider compromises to avoid burden and expense

Nature of Case: Securities violations

Electronic Data Involved: ESI

Purdee v. Pilot Travel Centers, LLC, 2009 WL 430401 (S.D. Ga. Feb. 19, 2009)

Dec 01 2009

Key Insight: Court denied plaintiff?s motion to compel, despite acknowledgement that requested information could ?slightly bolster plaintiff?s claims,? where the requests were either ?overly broad, unnecessarily cumulative, or plainly irrelevant? and where plaintiff did not indicate the information was necessary to survive the pending motion for summary judgment; court also denied motion for spoliation sanctions for destruction of certain data and surveillance video where plaintiff did not show resulting prejudice, but left open the possibility of an adverse inference instruction if defendant chose to reference the allegedly spoliated information at trial

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, surveillance tape

In re Apotex, Inc., 2009 WL 618243 (S.D.N.Y. Mar. 9, 2009)

Dec 01 2009

Key Insight: Concluding that discovery requests were unduly intrusive and burdensome, court vacated grant of permission to obtain discovery for use in Canadian litigation and quashed the resulting subpoena because responding to the subpoena would require substantial effort on the part of a non-party because of the passage of time, because relevant data was not readily available from a database, as anticipated, due to the organizational structure of the database, and because a privilege review requiring subs6tantial resources would likely need to be undertaken

Nature of Case: Canadian litigation

Electronic Data Involved: ESI from database

Adele S.R.L. v. Filene?s Basement, Inc., 2009 WL 855955 (S.D.N.Y. Mar. 24, 2009)

Dec 01 2009

Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, database information, back up tapes

In re Motor Fuel Temp. Sales Practices Litig., 2009 WL 959493 (D. Kan. Apr. 3, 2009)

Dec 01 2009

Key Insight: Court overruled defendants? objections that searching for pre-2001 paper documents would be overly burdensome and ordered production of boxes potentially containing relevant information, as maintained in the course of business, for inspection and identification of responsive materials to be copied, with no waiver of privilege as to documents determined to be privileged; acknowledging defendant?s burden in searching pre-2001 email where data was not easily accessible because of disparate email systems and back up procedures, court allowed plaintiffs, after reviewing hard copy, to specifically identify email or other ESI for production, if found, but did not order a search of all email; where Shell defendant proved undue burden in physically searching individual stations for responsive data, court limited search to ten locations but declined to find undue burden regarding the search of databases and ordered defendants to search the individual databases of 246 Shell stations for responsive information

Nature of Case: Claims arising from accusations that defendants sold fuel at a specified price without adjusting for temperature expansion

Electronic Data Involved: Hard copy, archived email, databases, ESI

Dilley v. Metro. Life Ins., Co., 256 F.R.D. 643 (N.D. Cal. 2009)

Dec 01 2009

Key Insight: Upon finding that because of the ?relative inaccessibility of the information sought?responding to the request would be overly burdensome? where defendant was unable to query its database for the information requested and upon finding that the information sought would not satisfy plaintiff?s purpose without additional information, court found that defendant had established that ?the significance of the discovery to the issues in the present case is substantially outweighed by the burden? and granted defendant?s motion for a protective order

Nature of Case: Wrongful denial of claim for disability benefits

Electronic Data Involved: Database contents

Loius Vuitton Malletier, S.A., v. Akanoc Solutions, Inc., 2009 WL 1312898 (N.D. Cal. May 12, 2009)

Dec 01 2009

Key Insight: Where plaintiff?s initial investigation into publicly posted Internet content evidencing offers for counterfeit products revealed that several previously identified addresses belonged to the same individual and where plaintiff identified additional potentially infringing sites, court granted plaintiff?s motion to modify the court ordered inspection protocol to allow investigation beyond the 67 websites previously identified; court rejected defendants? argument that modification should be denied as burdensome where plaintiff was to bear the cost of the searching and rejected defendants privacy concerns in light of expert?s articulated methodology for pinpointing only potentially relevant material

Nature of Case: Trademark and copyright infringement

Electronic Data Involved: Website Content

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