Tag:Proportionality

1
Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)
2
Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sept. 1, 2016)
3
Theidon v. Harvard Univ., NO. 15-cv-10809-LTS, 2016 WL 447447 (D. Mass. Feb. 4, 2016)
4
Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901 (S.D.N.Y. Nov. 16, 2016)
5
Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)
6
In re Disposable Contact Lens AntiTrust Litig., No. 3:15-md-2626-J-20JRK, 2016 WL 6518660 (M.D. Fla. Nov. 1, 2016)
7
Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)
8
In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)
9
Moore v. Lowe?s Home Centers, LLC, No. 14-1459 RJB, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)
10
Boyington v Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813 (W.D. Pa. Oct. 14, 2016)

Duhigg v. Goodwill Indus., No. 8:15CV91, 2016 WL 4991480 (D. Neb. Sept. 16, 2016)

Key Insight: Court denied Plaintiff?s motion to compel the production of emails containing Plaintiff?s name as a search hit and granted in part Defendant?s motion for a protective order where Defendant established that the emails were not reasonably accessible in light of the time and minimum costs of production, estimated at $45,825, and where the court also found they were not proportional to the needs of the case; although the court found Plaintiff?s proposed terms overbroad (her name) the court disagreed with Defendant?s time limitation on its own search for emails where prior discriminatory acts, even if not actionable, could be used as background evidence and ordered the parties to meet and confer regarding appropriate search terms to be used to search the accounts of 3 custodians over a 4 year period

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sept. 1, 2016)

Key Insight: Court found dismissal was a disproportionate sanction for failure to preserve text messages lost when phone was dropped and broken but did conclude that Plaintiff and her counsel failed to take ?reasonable steps to preserve? those texts which resided only on Plaintiff?s phone, reasoning that ?[o]nce it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one?; court indicated defendant would be free to examine witnesses who had read the texts and explore the circumstances surrounding their destruction and further indicated that the court had not ruled out a spoliation instruction, an option reserved until after the court heard the evidence at trial

Nature of Case: Employment litigation

Electronic Data Involved: Explicit text messages

Theidon v. Harvard Univ., NO. 15-cv-10809-LTS, 2016 WL 447447 (D. Mass. Feb. 4, 2016)

Key Insight: Where Defendant objected to the production of duplicate documents but agreed to provide a spreadsheet with metadata for every document and to produce duplicates identified by Plaintiff, court concluded that Plaintiff had not demonstrated that Defendant?s proposal was unreasonable and denied her motion to compel

Nature of Case: Denial of tenure based on gender discrimination and retaliation

Electronic Data Involved: ESI

Alaska Elec. Pension Fund v. Bank of Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901 (S.D.N.Y. Nov. 16, 2016)

Key Insight: Plaintiffs? broad request for documents previously produced by Defendants in prior investigations or produced to or received from any government agency, regulator, department, etc. related to the issues in the current investigation failed to withstand scrutiny to establish relevance beyond merely ?bear[ing] on? the issues in the investigation, particularly where Plaintiffs failed to point to any specific information that that would be found solely in the unproduced documents and not in the 1.5 million documents Defendants did produce from prior investigations (?At bottom, then, Plaintiffs? entire relevancy argument hinges on a general contention that every communication and work product related to the regulatory investigations is ?likely? to contain additional relevant information. But that sort of conclusory claim is insufficient to support such an expansive discovery request.?); court also concluded that the requested discovery was not proportional, but denied the motion without prejudice, allowing plaintiff an opportunity to renew their motion with ?narrower, more proper discovery requests.?

Nature of Case: Conspiracy to manipulate ISDAfix rates (government investigation)

Electronic Data Involved: ESI previously produced to government, all documents sent to/received from government related to issues in underlying investigation (including correspondence, subpoenas, CIDs, etc.)

Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)

Key Insight: Court granted in part Plaintiffs? motion to compel additional searching in two previously excluded timeframes, denying the motion as to documents generated at a time in which ?nothing of significance was happening? as indicated by Defendants and because the cost and burden of the requested discovery would violate the rule of proportionality but granting the motion as to information created after the filing of the complaint, where the court rejected Defendants? claim that nothing created after that time could have possibly been relevant and noted that Defendants failed to present any specific argument about undue burden, apart from having disassembled their review teams

Nature of Case: Breach of contract

Electronic Data Involved: ESI from previously unsearched timeframes

In re Disposable Contact Lens AntiTrust Litig., No. 3:15-md-2626-J-20JRK, 2016 WL 6518660 (M.D. Fla. Nov. 1, 2016)

Key Insight: Where the ?potential relevance? of the information sought was ?essentially undisputed,? but where Defendant claimed to have already spent $700,000 on discovery and that the request for 18 additional custodians could result in an expenditure of at least $1.5 million, court noted that the parties? dispute was essentially a question of proportionality and concluded a that two additional ?upper-management custodians? were warranted (as opposed to the seven requested) and also found that a sample of four sales manages was appropriate (as opposed to the eleven requested); as to Class Plaintiffs? request for a ?hit list? generated by applying the agreed-upon search terms to the collected materials, the court reasoned that in light of the number of custodians and the parties? agreement as to search terms, such a list seemed ?less valuable that it might otherwise be,? but ordered that if one was automatically generated, it should be produced

Nature of Case: Class Action

Electronic Data Involved: Additional Custodians

Ye v. Veissman, Inc., No. 14-cv-01531, 2016 WL 950948 (N.D. Ill. Mar. 7, 2016)

Key Insight: Where Defendants requested a full archive of social media contents from the decedent and her next of kin from 2007 through the date of Plaintiff?s death in April 2013, the court acknowledged that some social media content may be relevant to the claims and defenses at issue but found that where the request was not tailored to relevant content or limited to a reasonable period of time it was overbroad and Defendants? motion to compel was denied

Nature of Case: Wrongful death

Electronic Data Involved: Social media (Facebook)

In re Bard IVC Filters Prod. Liab. Litig., —F.R.D.—, 2016 WL 4943393 (D. Ariz. Sept. 16, 2016)

Key Insight: In this case, the parties disagreed on the discoverability of communications between Defendants? foreign subsidiaries and divisions and foreign regulators regarding the filters at issue in the case. Following analysis of the effects of the December 1, 2015 amendments on the Federal Rules of Civil Procedure and of the specific facts of the case, the court determined that the at-issue communications were ?only marginally relevant? and was persuaded that ?the burden of [the] foreign discovery would be substantial.? Thus, the court concluded that Defendants were not required to search their foreign entities for communications with foreign regulators. In the course of its discussion of the amendments, the court stated: “Amended Rule 26(b)(1) was adopted pursuant to the Rules Enabling Act, 28 U.S.C. ? 2072 et. seq. That statute provides that ‘[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.’ Id., ? 2072(b). Thus, just as a statute could effectively overrule cases applying a former legal standard, the 2015 amendment effectively abrogated cases applying a prior version of Rule 26(b)(1). The test going forward is whether evidence is ‘relevant to any party?s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.'”

Moore v. Lowe?s Home Centers, LLC, No. 14-1459 RJB, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)

Key Insight: Court declined to compel Defendant to conduct additional searches of witnesses? email accounts using 88 new search terms and excluding Plaintiff?s name finding that the request was ?overly broad and not proportional to the case? and reasoning that Plaintiff relied upon a multi-plaintiff case to justify her position and that she had not provided specifics regarding what she reasonably expected to find or shown that the information could not be found through other means, such as by asking additional questions of witnesses already scheduled for deposition ; court ordered Defendant to produce the relevant policies it operated under where Defendant claimed emails were deleted in the ordinary course of business according to Company policy, and that Defendant should also provide Plaintiff with the date of the deletion and the name of the person who made the deletion or the process of deletion, if known

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Boyington v Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813 (W.D. Pa. Oct. 14, 2016)

Key Insight: Plaintiffs sought to compel production of all emails sent to or from any of the Plaintiffs through a Percheron account. The Court found the emails were relevant because they may shed light on informal work policies, hours worked, and serve as a potential cross-reference to the other records kept by Defendant. Analyzing proportionality, the Court concluded that the importance of the issues (to the Plaintiffs), the amount in controversy (alleged to be ?in excess of several million dollars?), the resources of the parties, the parties? relative access to the information and the importance of the discovery in resolving the issues weighed in favor of Plaintiffs/production. Regarding whether the burden of discovery outweighed the benefit, the Court acknowledged Defendant?s claim that the review ?would likely cost $735,000-$798,964 and take a team of 20 attorneys 12 weeks to complete,? but reasoned that the Court?s refusal to compel production of certain email categories would lessen the estimated costs and that Defendant?s inability to provide certain data had caused Plaintiffs to have to ?puzzle together damages? and concluded that the request did not ?run afoul? of proportionality. The court also relied on Defendants prior agreement to produce the emails. Addressing Plaintiffs? motion to compel information regarding Defendant?s preservation efforts, the court ordered production of the names of those that received litigation holds and related information, but declined to order the litigation holds themselves.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Emails, Information re: litigation hold notices

Copyright © 2025, K&L Gates LLP. All Rights Reserved.