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

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US ex rel Oughatiyan v. IPC The Hospitalist Co., Inc., No. 09 C 5418, 2015 WL 4249195 (N.D. Ill. July 14, 2015)
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Artt v. Orange Lake Country Club Realty, Inc., No. 6:14-cv-956-Orl-40TBS, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015)
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City of Sterling Heights Gen. Emps.? Ret. Sys. V. Prudential Fin., Inc., No. 12-05275(MCA)(LDW), 2015 WL 5055241 (D.N.J. Aug. 21, 2015)
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Webb v. Ethicon Endo-Surgery, Inc., No. 13-1947(JRT/JJK), 2015 WL 317215 (D. Minn. Jan. 26, 2015)
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Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 WL 7158212 (W.D. Wash. Nov. 13, 2015)
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Siriano v. Goodman Mfg. Co., L.P., No. 2:14-cv-1131, 2015 WL 8259548 (S.D. Ohio Dec. 9, 2015)
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Knauf Insulation, LLC v. Johns Manville Corp., No. 1:15-cv-00111-WTL-MJD, 2015 WL 7089725 (S.D. Ind. Nov. 13, 2015)
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Shaw v. Experian Info. Sol., Inc., 2015 WL 1260552 (S.D. Cal. Mar. 18, 2015)
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Executive Mgmt. Servs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2014 WL 5529895 (S.D. Ind. Nov. 3, 2014)
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XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12-2071, 2014 WL 295053 (E.D. La. Jan 27, 2014)

US ex rel Oughatiyan v. IPC The Hospitalist Co., Inc., No. 09 C 5418, 2015 WL 4249195 (N.D. Ill. July 14, 2015)

Key Insight: Court addressed motion to compel nationwide discovery in action for fraudulent billing of Medicare and Medicaid but, considering the ?scope of discovery expressed in Rule 26(b)(1) along with the principle of proportionality implicit in Rule 26(b)(2)(C)(iii)? limited initial phase of discovery to the seven states regarding which ?factual allegations? had been alleged in the complaint, recognizing that ?staged discovery [was] the way to move discovery forward,? and indicated that the motion would be denied without prejudice

Nature of Case: False Claims Act

Electronic Data Involved: ESI records from nationwide locations

Artt v. Orange Lake Country Club Realty, Inc., No. 6:14-cv-956-Orl-40TBS, 2015 WL 4911086 (M.D. Fla. Aug. 17, 2015)

Key Insight: In FLSA case seeking compensation for ?off the clock? work, court found that defendant?s request for any social media activity posted between 7AM and 7PM on any date between June 19, 2011 and Plaintiff?s termination was ?on its face overbroad, unduly burdensome and unreasonable?

Nature of Case: FLSA

Electronic Data Involved: Social media

City of Sterling Heights Gen. Emps.? Ret. Sys. V. Prudential Fin., Inc., No. 12-05275(MCA)(LDW), 2015 WL 5055241 (D.N.J. Aug. 21, 2015)

Key Insight: Citing its broad discretion to manage discovery and the limitations posed by Rule 26(b)(2)(C), court granted in part and denied in part Plaintiffs? motion to compel Defendant to identify additional custodians and utilize additional search terms and ordered that Plaintiffs would be allowed to choose up to 10 additional custodians and that Defendant must apply the four disputed search terms proposed by Plaintiffs

Nature of Case: Securities Class Action

Electronic Data Involved: ESI

Webb v. Ethicon Endo-Surgery, Inc., No. 13-1947(JRT/JJK), 2015 WL 317215 (D. Minn. Jan. 26, 2015)

Key Insight: Court overruled parties’ objections to Magistrate Judge’s order addressing scope of discovery where underlying court properly considered and applied the principle of proportionality; addressing defendant’s alleged costs of production, court reasoned in part that ?The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.?

Nature of Case: Products liability

Electronic Data Involved: ESI

Weidenhamer v. Expedia, Inc., No. C14-1239RAJ, 2015 WL 7158212 (W.D. Wash. Nov. 13, 2015)

Key Insight: Court denied motion to compel Defendant to search for documents from non-U.S. points of sale where the court found such documents would be of ?marginal relevance at best? and that the burden and expense of production outweighed the benefit, noting that such production would ?vastly expand? an already voluminous production, would entail additional translation costs, and would ?potentially require the involvement of additional entities or foreign law??; court also declined to compel Defendant to conduct searches of Account Representatives for 170 different airlines where Plaintiff failed to establish that the expanded search would reveal additional relevant information and noting that the productions of third party air carriers had not revealed any ?glaring deficiencies? in Defendant?s production

Nature of Case: Class action

Electronic Data Involved: ESI

Siriano v. Goodman Mfg. Co., L.P., No. 2:14-cv-1131, 2015 WL 8259548 (S.D. Ohio Dec. 9, 2015)

Key Insight: Applying the proportionality factors in Rule 26(b)(1) (including specific contemplation of Defendants? ?corporate resources? and the ?potentially very large? amount in controversy) and reasoning that the Sixth Circuit has held that ?limiting the scope of discovery is appropriate when compliance ?would prove unduly burdensome,? not merely time-consuming or expensive? and that Defendants failed to propose an alternative method of discovery ?enabling some lesser degree of production,? the court directed the parties to cooperate and indicated it would schedule a conference to discuss ?whether and to what extent discovery should proceed in phases?

Nature of Case: Putative class action re: design or manufacturing defect

Electronic Data Involved: ESI

Knauf Insulation, LLC v. Johns Manville Corp., No. 1:15-cv-00111-WTL-MJD, 2015 WL 7089725 (S.D. Ind. Nov. 13, 2015)

Key Insight: Where Defendants identified 38 potential email custodians who may possess relevant ESI but proposed to load the emails of only ten custodians to save money and ?facilitate the predictive coding process? and where Plaintiff indicated that Defendant refused to informally disclose information sufficient to evaluate the importance of each custodian, the court briefly opined re: e-Discovery and the lack of any guarantee that all relevant documents will be found and then, reasoning that it had no evidence with which to weigh the likelihood that the 28 ?tangential custodians? would have relevant information but that in ?a high value? case the burden of $18,000 (the amount Defendant proposed to save) did not outweigh the potential benefit to Plaintiff of receiving the emails, declined Defendants? request to limit custodians; regarding cost-shifting, the court ordered that if the search of the 28 additional custodians returned fewer than 500 responsive documents Plaintiff would bear the cost of loading the materials but that if more than 500 were identified, Defendant would bear the costs

Nature of Case: Patent infringement

Electronic Data Involved: Email

Shaw v. Experian Info. Sol., Inc., 2015 WL 1260552 (S.D. Cal. Mar. 18, 2015)

Key Insight: Court granted Plaintiffs? motion to compel production of defendant database records. Defendant argued that the harm to third parties from disclosure of personal information contained in the requested data outweighed the relevance of the information to plaintiffs? claim, and that the preparation, review, and production presented an undue burden. Finding that the requested data was highly relevant to the class certification requirements, the court concluded plaintiffs? need significantly outweighed privacy concerns given the option of producing subject to protective order and Plaintiffs? agreement to accept data with personal information redacted. Nor was the court persuaded by defendant?s burden argument, finding the estimate and explanation from plaintiffs? database consultant ?more persuasive, appropriate, and accurate? than that provided by defendant – particularly in light of modifications Plaintiffs made to their request after defendant clarified how the data was stored in their systems. The court also noted that defendant?s briefing failed to allege any facts supporting its assertion that the information was more readily available from other sources.

Nature of Case: Class Action; Violation of Fair Credit Reporting Act

Electronic Data Involved: Database

Executive Mgmt. Servs., Inc. v. Fifth Third Bank, No. 1:13-cv-00582-WTL-MJD, 2014 WL 5529895 (S.D. Ind. Nov. 3, 2014)

Key Insight: Granting in part plaintiff’s motion to compel, court rejected defendant’s assertion of irrelevance and its conclusory assertions of burdensomeness, finding that defendant had failed to “show with specificity” that plaintiff’s requests were overly burdensome and noting that defendant’s contentions would have more force if defendant had provided an estimate of the cost or hours involved in searching, compiling, and producing the requested information; addressing the discovery of ESI ?more directly,? court ordered defendant to file a disclosure stating the names of all custodians whose ESI was searched, the scope of the ESI searched, date ranges searched for each custodian and specific search terms used, and also provide such information for any additional custodians whose ESI would be searched in light the withdrawal of defendant?s objections; plaintiff was then required, within seven days, to propose a list of additional custodians and scope of ESI, date ranges and specific search terms for such custodians, following which the parties should endeavor to reach agreement regarding the scope of additional e-discovery

Nature of Case: Claims for breach of implied duty of good faith and fair dealing and breach of fiduciary duty

Electronic Data Involved: ESI

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