FRCP 26(b)(2)(C) Limitations – Page 22 – Electronic Discovery Law

In re Fischer Advanced Composite Components AG, 2008 WL 5210839 (W.D. Wash. Dec. 11, 2008)

Dec 01 2008

Key Insight: Citing its discretion pursuant to U.S.C. ? 1782, court declined to compel production of requested communications from parent corporation for use in foreign jurisdiction where court found the information sought was in the possession of a party to the action in the foreign jurisdiction and that to compel production of such information would be ?burdensome and duplicative?

Nature of Case: Breach of contract and tortious intimidation (proceedings initiated in foreign jurisdiction)

U & I Corp. v. Advanced Med. Design, Inc., 251 F.R.D. 667 (M.D. Fla. 2008)

Dec 01 2008

Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner

Nature of Case: Breach of contract, account stated, open account, and unjust enrichment

Electronic Data Involved: Computer hard drives of plaintiff’s employees

U.S. ex rel. Her v. Regions Fin. Corp., 2008 WL 4493237 (W.D. Ark. Oct. 3, 2008)

Dec 01 2008

Key Insight: Where computer search identified 7845 potentially responsive files but defendant argued production would be unduly burdensome and where plaintiffs acknowledged that a 10% sampling would be sufficient, court ordered submission of computer printout of all potentially relevant files to the court and used online program to randomly select sampling for production; court granted plaintiffs? discovery requests for additional data related to loans only as they pertained to 10% sampling

Nature of Case: Violation of Federal False Claims Act

Electronic Data Involved: 7845 computer files

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Thielen v. Buongiorno USA, Inc., 2007 WL 465680 (W.D. Mich. Feb. 8, 2007)

Dec 01 2007

Key Insight: Court granted defendant’s motion to compel forensic inspection of plaintiff’s computer and defendant’s sole expense, but limited the scope of the inspection to determining whether, during the relevant time period, plaintiff accessed defendant’s website or a website which advertised defendant’s services, what interaction plaintiff had with such websites and what, if any, information concerning those internet transactions was subsequently deleted

Nature of Case: Cellular phone user alleged that defendant violated the Telephone Consumer Protection Act of 1991 by sending text messages to plaintiff’s cell phone without his permission

Electronic Data Involved: Plaintiff’s computer hard drive

E.E.O.C. v. Boeing Co., 2007 WL 1146446 (D. Ariz. Apr. 18, 2007)

Dec 01 2007

Key Insight: Where court had previously denied plaintiff’s motion to compel on the grounds that defendant had made the showing, pursuant to Rule 26(b)(2)(C), that email sought was “not reasonably accessible because of undue burden or costs,” and because plaintiff had not shown good cause to justify the expense of the proposed discovery, court denied subsequent motion to compel defendant’s Rule 30(b)(6) designee to provide testimony on how email production cost estimate was determined

Nature of Case: Employment litigation

Electronic Data Involved: Email

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Am. Fast Freight, Inc. v. Nat’l Consol. & Distrib., Inc., 2007 WL 3357694 (W.D. Wash. Nov. 7, 2007)

Dec 01 2007

Key Insight: Court granted plaintiffs’ motion to compel production of: (1) electronic data used to answer interrogatories, (2) information systems organizational charts, (3) policies and records regarding electronic data, electronic backup, electronic data retention and destruction, finding that the requests could lead to relevant evidence regarding what efforts defendant made to preserve ESI, since plaintiffs alleged that defendant failed to produce ESI with its initial disclosures under FRCP 26(a)(1)

Nature of Case: Breach of contract, unjust enrichment

Electronic Data Involved: ESI used to answer interrogatories; backup and retention policies

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Ex parte Cooper Tire & Rubber Co., 987 So.2d 1090 (Ala. 2007)

Dec 01 2007

Key Insight: In light of evidence presented by Cooper that burden of producing responsive emails would entail thousands of hours and hundreds of thousands of dollars, Alabama Supreme Court granted in part petition for writ of mandamus and instructed trial court to ?specifically address Cooper’s arguments that compliance with the plaintiffs’ request for the discovery of e-mails is unduly burdensome in light of the recent federal guidelines on that subject,? and to enter an appropriate protective order to the extent it found that the production of certain ESI was unduly burdensome; court further opined that trial court should consider the 2006 FRCP amendments and the factors applied in Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004)

Nature of Case: Defendant tire manufacturer in product liability case petitioned Alabama Supreme Court for writ of mandamus ordering trial court to grant its motion for a protective order limiting discovery

Electronic Data Involved: Emails and other ESI

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