Tag: FRCP 26(b)(2)(C) Limitations
Collins v. ControlWorx, LLC (M.D. La. 2021)
Benebone LLC v. Pet Qwerks, Inc. (C.D. Cal. Feb. 18, 2021)
Crossman v. Carrington Mortg. Servs., LLC, (M.D. Fla. May 4, 2020)
Shotwell, et al. v. Zillow Group Inc., et al. (Western Washington, 2019)
In re Verizon Wireless (D. Md., 2019)
Fair v. Communications Unlimited, Inc. (E.D. MO, 2019)
Beseke v. Equifax Information Services, LLC, No. 17-CV-4971-DWF-KMM (D. Minn, 2018)
Valdes v. Greater Naples Fire Rescue Dist. No. 2:17-cv-417-FtM-29CM (M.D. Fla. Sept. 7, 2018)
In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D. Ill. July 26, 2018)
Satmodo, LLC v. Whenever Communications, LLC, 3:17-cv-192-AJB-NLS (S.D. Cal. July 20, 2018)
Browse archives for September 27, 2021
Tagged with Damaged Electronic Storage Devices, Data Preservation, Employment Discrimination, Family Medical Leave Act ("FMLA"), FRCP 26(b)(1) Scope Defined by Relevance and Proportionality (effective Dec. 1, FRCP 26(b)(2)(C) Limitations, FRCP 26(c) Protective Orders, FRCP 33, FRCP 34(b) Procedure or Format, FRCP 37, Lack of Response to Discovery Requests, Motion to Compel, Privilege or Work Product Protections, Social Media
Key Insight:
Defendant filed a Motion to Compel Plaintiff to produce audio recordings, hard drives, social media posts. Defendants' Motion was granted. At least a portion of the data that Plaintiff was obligated to produce had been destroyed and/or missing due to a flood. After Plaintiff informed it of us, Defendant agreed to provide Plaintiff with an extension of time to correct his deficient discovery responses. Contingent on time for Plaintiff to allow his deposition to be retaken.
In his Response to Defendant's Motion, Plaintiff did not assert that he complied with his discovery obligations but rather than production of the information sought was unreasonably cumulative or duplicative. For approximately 18 requests for production, Plaintiff failed to provide a response or objection, and failed to timely supplement his responses.
The Court granted largely Defendant's Motion to Compel, ordering Plaintiff to respond to its requests for production, and supplement his responses to interrogatories, but also limiting Plaintiff's responses to documents that would not require disclosure of attorney-client privilege and/or information that was not overly broad. Moreover, the Court ordered Plaintiff to appear for an additional supplemental deposition and also state that electronically stored information relevant to the litigation was actually destroyed (due to flooding) and submit the damaged storage devises for expert inspection. The
respective parties were responsible for their own attorney's fees and costs regarding the discovery issues.
Nature of Case: Employment Discrimination, Family and Medical Leave Act
Electronic Data Involved: Hard Drives, Audio Recordings, Social Media Posts
Tagged with Disproportional, e-Discovery Vendor, FRCP 26(b)(1) Scope Defined by Relevance and Proportionality (effective Dec. 1, FRCP 26(b)(2)(C) Limitations, Motion to Compel, Proportionality, Slack, Slack Channel, Text Message, Unduly Burdensome
Key Insight: Court granted defendants' motion to compel plaintiff to produce Slack messages used as part of its internal business communications. Despite the potentially 30,000 Slack messages to review, the court found compelling the testimony from defendants' forensic expert who stated there are a number of tools and software vendors that have streamlined review and production of Slack messages. Further, searches could be limited to certain Slack channels, users and custodians to very streamline the volume of messages for review. Thus, "requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case – if the requests and searches are appropriately limited and focused."
Nature of Case: Intellectual property
Electronic Data Involved: Slack messages
Tagged with Boilerplate Objections, Facebook, FRCP 26(b)(2)(C) Limitations, FRCP 26(c) Protective Orders, FRCP 34(b) Procedure or Format, FRCP 34(c) Objections, Instagram, Middle District Discovery Handbook, Motion to Compel, Privacy, Relevance, Social Media, Text Message, Vagueness
Key Insight: Defendant moved to compel social media discovery from plaintiff. The court considered plaintiff's objections based on relevancy, privacy, and vagueness. Plaintiff did not assert a proportionality argument. The court found that the discovery was relevant – "common sense dictates that information in [plaintiff's] social medial . . . relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered at the hands of [defendant], including loss of enjoyment of life." As to privacy, a confidentiality agreement suffices to protect plaintiff's interests. As to vagueness, plaintiff's counsel can "reasonably and naturally" interpret the requests in view of the claims and defenses through communication with opposing counsel. Lastly, an award of expenses was unwarranted since "reasonable minds can differ on the dispute."
Electronic Data Involved: Social Media
Tagged with Adequacy of Search/Identification or Collection, Data Preservation, Discoverability Scope, Including FRCP 26(b)(1) Scope (Prior to Dec. 1, 2015), Early Conference/Discovery Plan, ESI Protocol, FRCP 26(b)(2)(C) Limitations, FRCP 26(b)(5)(B) or FRE 502, FRCP 34(b) Procedure or Format, Keyword Search, Motion for Preservation Order
Key Insight: detailed stipulation of the discovery plan
Nature of Case: violation of the securities exchange act
Electronic Data Involved: all relevant discovery
Keywords: stipulation, discovery plan
View Case Opinion
Tagged with FRCP 26(b)(2)(C) Limitations, Metadata, Motion for Protective Order, Text Message
Key Insight: phone records for certain employee numbers overbroad
Nature of Case: discrimination and retaliation
Electronic Data Involved: text messages and phone records
Keywords: subpoena phone records
Tagged with Discoverability Scope, Including FRCP 26(b)(1) Scope (Prior to Dec. 1, 2015), FRCP 26(b)(2)(C) Limitations, FRCP 45 Third Party Subpoenas, Lack of Cooperation / Inaccurate Representations, Motion to Compel, Third Party Discovery
Key Insight: P subpoenaed for documents from a third-party after failing to receive the same information from defendant
Nature of Case: employment dispute
Electronic Data Involved: contracts/agreements, subcontractor agreements, financial information, e-mail
Keywords: subcontractor, independent contractor, technician, subpoena, third-party, undue burden on a person subject to subpoena
Browse archives for October 18, 2018
Tagged with Data Preservation, Data Privacy, Discoverability Scope, Including FRCP 26(b)(1) Scope (Prior to Dec. 1, 2015), FRCP 26(b)(2)(C) Limitations, Motion to Compel, Policy on Routine Records Management and Retention, Proportionality
Key Insight: accessibility of data
Nature of Case: Violations of the FCRA
Electronic Data Involved: information related to similar lawsuits and consumer complaints
Keywords: data, searchable, accessible, access*, undue burden,
Tagged with Data Preservation, Discoverability Scope, Including FRCP 26(b)(1) Scope (Prior to Dec. 1, 2015), FRCP 26(b)(2)(b) "Not Reasonably Accessible", FRCP 26(b)(2)(C) Limitations, FRCP 34(b) Procedure or Format, Motion to Compel
Key Insight: forensic examination should be ?the exception, not the rule.?
Nature of Case: employment, FMLA
Electronic Data Involved: text messages, deleted messages, lost devices, forensic examination
Keywords: social media, text messages, forensic examination, FMLA
Browse archives for July 26, 2018
Tagged with Adequacy of Search/Identification or Collection, ESI Protocol, FRCP 26(b)(2)(C) Limitations, Keyword Search, Motion for Protective Order, Proportionality
Key Insight: Undue burden or cost of discovery alleged by defendant.
Nature of Case: antitrust class action
Electronic Data Involved: ESI searches upon 12 custodians
Keywords: Has not made a threshold showing, does not satisfy the rule 26(b)(2)(C) factors.
Tagged with Adequacy of Search/Identification or Collection, Data Preservation, Discoverability Scope, Including FRCP 26(b)(1) Scope (Prior to Dec. 1, 2015), FRCP 26(b)(2)(b) "Not Reasonably Accessible", FRCP 26(b)(2)(C) Limitations, FRCP 26(c) Protective Orders, Metadata, Motion to Compel, Proportionality
Key Insight: requests are overbroad, alternative "live test" proposed instead of inspection of devices.
Nature of Case: Plaintiff allegation of Defendant engagement in a click fraud scheme.
Electronic Data Involved: inspection of defendant's computing devices (computers, phones, tablets, etc)
Keywords: wasteful discovery, common-sense concept of proportionality, Winter list