Tag: Proportionality

1
Archer Daniels Midland Co. v. Chemoil Corp., 15-2199, 2016 WL 9051173 (C.D. Ill. Oct. 19, 2016)
2
Boyington v Percheron Field Servs., LLC, No. 3:14-CV-90, 2016 WL 6068813 (W.D. Pa. Oct. 14, 2016)
3
Family Wireless #1, LLC v. Auto. Techs., Inc., No. 3:15CV01310(JCH), 2016 WL 2930887 (D. Conn. May 19, 2016)
4
Westmoreland v. Wells Fargo Bank Nw., N.A., No. 1:15-cv-00312-CWD, 2016 WL 6471433 (D. Idaho Oct. 31, 2016)
5
Mid. Am. Sols. LLC v. Vantiv, Inc., No. 1:16-mc-2, 2016 WL 1611381 (S.D. Ohio April 4, 2016)
6
Carlson v. Jarousek, No. 2-15-1248, 20167243557 (Ill. App. Ct. Dec. 21, 2016)
7
Theidon v. Harvard Univ., NO. 15-cv-10809-LTS, 2016 WL 447447 (D. Mass. Feb. 4, 2016)
8
Perez v. Mueller, No. 13-C-13-2, 2016 WL 3360422 (E.D. Wis. May 27, 2016)
9
Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)
10
Wilmington Trust Co. v. AEP Generating Co., No. 2:13-cv-01213, 2016 WL 860693 (S.D. Ohio Mar. 7, 2016)

Archer Daniels Midland Co. v. Chemoil Corp., 15-2199, 2016 WL 9051173 (C.D. Ill. Oct. 19, 2016)

Key Insight: Court denied Defendant?s motion to compel production of emails from Plaintiff?s former employee where Plaintiff?s initial production included some communications from the at-issue employee, where Plaintiff had already conducted a second search that did not yield additional documents, where the emails of the former employee had been moved off of active servers thus requiring the initiation of disaster recovery protocols to conduct an additional search, and where the emails of other parties to the potentially relevant communications remained on the active servers and had also been searched; court also noted that Defendant had deposed the former employee for 6 hours

Electronic Data Involved: Email of former employee

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

Family Wireless #1, LLC v. Auto. Techs., Inc., No. 3:15CV01310(JCH), 2016 WL 2930887 (D. Conn. May 19, 2016)

Key Insight: Court granted in part Plaintiffs’ motion to compel discovery from additional custodians (the parties had previously agreed to seven in total) where Plaintiff showed good cause to compel such searching upon establishing two custodians? involvement with a relevant committee and another?s regular contact with the franchisees and the issues in this case and where the court reasoned (among other things) that: ?The mere fact that many documents have already been produced is not sufficient to establish that there are no other relevant materials to be found.? and that ?It is reasonable to believe that discussions and transmissions of potentially relevant information could transpire below the highest echelon of management; indeed, as defendant acknowledged, some of the lower-level employees had direct communication with the franchisees regarding commissions.?

Nature of Case: Breach of contract, misrepresentation, unjust enrichment, and unfair trade practices

Electronic Data Involved: ESI from additional custodians (“plaintiffs argue that the custodians should not be limited to decision-makers” and that lower level employees may also have relevant information)

Westmoreland v. Wells Fargo Bank Nw., N.A., No. 1:15-cv-00312-CWD, 2016 WL 6471433 (D. Idaho Oct. 31, 2016)

Key Insight: Defendant sought to compel the return of Plaintiff?s company-issued laptop in order to obtain its contents; production of all emails sent by Plaintiff?s counsel to a joint email account shared by Plaintiff and her husband; as well as an additional search of Plaintiff?s Facebook account. Because it became clear that neither party had accessed the laptop during the litigation but that both parties were interested in its contents, the Court ordered that imaging and retrieval would be conducted by an agreed upon third party but, recognizing Defendant?s security concerns, allowed a representative to be present for the process. The Court denied Defendant?s motion to compel production of emails that Plaintiff?s counsel sent to a joint email account accessible by both Plaintiff and her husband, indicating that Defendant had not shown that Plaintiff waived attorney-client privilege regarding the communications with her counsel by having the emails sent to a shared email account and citing marital privilege. The Court denied the motion requesting a third search of Plaintiff?s Facebook messages, indicating that the messages produced to date were satisfactory and that the time and cost of an additional search was not ?proportional to the needs of this litigation.?

Nature of Case: Employment discrimination

Electronic Data Involved: Company-issued laptop, emails, social media (social network)

Mid. Am. Sols. LLC v. Vantiv, Inc., No. 1:16-mc-2, 2016 WL 1611381 (S.D. Ohio April 4, 2016)

Key Insight: Court denied motion to compel production of at-issue data in ?condensed format? where Plaintiff originally requested and was provided with the data in it its ?original and unaltered format? and where the requested re-production was not proportional to the needs of the case because relevant evidence had already been provided; Court denied request for inspection to test accuracy of data produced where Plaintiff had not yet taken full advantage of the data in hand (by failing to take advantage of certain Excel functions) and thus had no basis for questioning the accuracy, thus rendering an inspection out of proportion to the needs of the case

Nature of Case: Breach of contract, fraud and related claims

Electronic Data Involved: ESI

Carlson v. Jarousek, No. 2-15-1248, 20167243557 (Ill. App. Ct. Dec. 21, 2016)

Key Insight: In personal injury case, the trial court abused its discretion by ordering forensic imaging of ALL of Plaintiff?s devices, including his work computer which was owned by his employer, where, among other things, the appellate court determined that such a request ran ?counter to the traditional protocol of discovery, in which one party requests specific information and the other party searches its own files (and computers) to identify and produce responsive information?; where the computer was not directly involved in the cause of action; where there was no evidence of prior discovery violations; and where ?careful consideration of relevance and proportionality reveal[ed] that forensic imaging was not justified in this case? including because there were ?ample? alternative avenues for discovery (e.g, requests for admission, depositions) and because much of the information sought fell within the categories of ESI identified in Illinois to be presumptively not discoverable; the court also addressed Plaintiff?s privacy concerns

Nature of Case: Personal injury (appeal)

Electronic Data Involved: Forensic imaging of computers (including work computer)

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

Perez v. Mueller, No. 13-C-13-2, 2016 WL 3360422 (E.D. Wis. May 27, 2016)

Key Insight: Where Defendants sought to compel discovery from the Secretary of the US Dept. of Labor, court found the proportionality factors in Rule 2(b)(1) ?easily tilt[ed] in favor of disclosure? reasoning that ?[t]he issues in this litigation are important from a public policy perspective, or at least they should be, lest the Secretary be engaging in years of unnecessary litigation at taxpayer expense? and also reasoning that the ?transaction at issue was for more than $13 million dollars? and that ?the federal government has unlimited resources? while Defendants were ?obviously financing their own defense.?

Nature of Case: ERISA

Electronic Data Involved: ESI

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-597-RP, 2016 WL 6916944 (W.D. Tex. Nov. 11, 2016)

Key Insight: Where Defendant resisted searching certain emails arguing undue burden and that it was unlikely that responsive emails would be found but where no evidence of burden was submitted, where not even a cursory search of the emails was undertaken and where there were examples of the sorts of email sought produced from other employees, the court ordered Defendant to conduct the requested search; similarly, where Defendant offered no evidence of the alleged burden to review and produce the at-issue call recordings, where Plaintiff offered to bear the full cost of transcribing the messages, and where the court determined that the likelihood that the calls would be privileged was low, the court ordered Defendant to produce the raw audiofiles of its customer service calls and voicemail; notably, at the outset of its analysis the court noted that at least 10 attorneys had appeared for each party and that it was ?apparent that the issues at stake are significant,? including posing an ?existential risk? to Defendant and therefore concluded that ?any proportionality argument has a high bar to clear to be successful?

Nature of Case: Trademark infringement

Electronic Data Involved: Customer service emails, call recordings

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

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