Tagged: Undue Burden or Expense

District Court Denies Protective Order in Putative Class Action: Production of Relevant ESI May Be Time Consuming and Expensive, But Not Unduly Burdensome

The District Court for the Eastern District of California recently denied a defendant’s motion for a protective order in a putative class action, finding that the information requested by plaintiff was relevant and subject to pre-certification discovery, and that defendant did not show that the electronically stored information (ESI) was inaccessible due to undue burden or cost, pursuant to Rule 26(b)(2)(C). Additionally, the court determined that even if defendant could show that the ESI was “inaccessible,” plaintiff demonstrated “good cause” to order production of the ESI notwithstanding the potential burden and cost. In Sung Gon Kang v. Credit Bureau Connection Inc., plaintiff, a consumer, filed a putative class action alleging that defendant provided businesses with inaccurate consumer credit information, including that plaintiff and the proposed class of consumers were included on the United States Treasury Department’s Office of Foreign Assets Control (OFAC) list. A consumer is ineligible for credit in the United States if he or she is included on the list. Plaintiff sought to “represent classes consisting of individuals ‘about whom Defendant … sold a consumer report to a third party’ that included an OFAC Hit.” The discovery dispute centered on defendant’s objections to plaintiff’s first set of written discovery requests. Specifically, defendant objected to requests seeking the identities of individuals who had an...

Cooperation Is Key: E.D.N.Y. Decision Illustrates the Risk of Refusing to Cooperate in Discovery

While litigation is inherently adversarial, counsel and litigants would be well-served to recognize that “zealous advocacy” and cooperation need not be mutually exclusive, especially in cases with significant amounts of electronically stored information (ESI). A recent decision from the District Court for the Eastern District of New York illustrates the risk a party and/or counsel takes in refusing to engage in the meet and confer process. This decision also reaffirms the fact that, when parties are working on crafting ESI search terms, it is the parties, not the court, who are in the best position to resolve such discovery disputes through the meet and confer process required under FRCP 26. Cooperation during the discovery process is not only economical in avoiding potential costly disputes, but also required by the Federal Rules of Civil Procedure. In particular, Rule 1 instructs the parties must help the court to “secure the just, speedy, and inexpensive determination of every action and proceeding.” To effectuate that goal, Rule 26(f) requires cooperation by the parties in formulating a discovery plan and meaningfully meeting and conferring in the event a discovery dispute arises. In the event the parties fail to cooperate, Rule 37 provides the court the ability to sanction a party for failing “to cooperate in discovery.” Additionally, many times, the...

Non-Consensual “Quick Peek” Revisited: FRE 502(d) Cannot Be Used to Compel Production of Potentially Privileged Information Without a Privilege Review

The District Court for the District of Columbia recently confirmed that FRE 502(d) orders cannot be used to force a responding party to produce potentially privileged documents without the opportunity to first review them. In doing so, the court found that such an order would not only violate the producing parties’ right to determine in the first instance how it reviews and produces, but would potentially compel the production of privileged information and thus would constitute “an abuse of discretion.” In Equal Employment Opportunity Commission v. George Washington University, the EEOC filed a discrimination action on behalf of a former executive assistant against defendant, George Washington University, alleging that defendant’s former athletic director treated the former executive assistant less favorably compared to her male co-worker, a former special assistant. The discovery dispute concerned four requests for production of documents served by plaintiff: three seeking thousands of emails from the work accounts of defendant’s former athletic director and his two assistants; and one seeking information related to workplace complaints against the former athletic director. Defendant argued that plaintiff’s requests were overbroad and unduly burdensome—that is, that compliance with the requests would impose costs that were “not proportional to the needs of the case,” under the proportionality dictates of FRCP 26. By its decision, the court resolved...

Exploration of Sophisticated Cloud Computing Abilities Unnecessary When Responding to Discovery Demands

A new decision out of the District of New Jersey holds that a company need not utilize its cloud-based comprehensive document search tools absent evidence that its standard custodian-based approach to data collection was deficient. In Koninklijke Philips v. Hunt Control Systems, a multi-billion dollar trademark dispute, defendant Hunt Control Systems, Inc. (“Hunt”) served plaintiff Koninklijke Philips N.V. (“Philips”) with discovery demands that included requests for production of electronically stored information (“ESI”). To prepare its response, Philips requested information from eight specific employees.

Florida Joins the Growing Number of States That Have Adopted Specific Rules Addressing Electronic Discovery

Effective September 1, 2012, Florida joined the long list of states that have adopted specific rules of procedure governing electronic discovery, which follows the July 5, 2012, announcement by the Supreme Court of Florida of its proposed amendments to seven civil procedure rules aimed at addressing the specific dilemmas facing litigants when e-discovery is sought. Florida’s Supreme Court approved and adopted the amendments in a formal opinion issued on July 5, 2012. While these amendments generally mirror the amendments to the Federal Rules of Civil Procedure first adopted by the United States Supreme Court in 2006, they diverge from the Federal Rules in some critical areas.

Who’s Paying For This? First Department Requires the Producing Party to Initially Bear the Costs of Production in U.S. Bank N.A. v. GreenPoint Mtge. Funding, Inc.

For the second time this year, New York’s First Department, Appellate Division, has adopted e-discovery standards articulated in Zubulake v. UBS Warburg LLC, 220 FRD 212 (S.D.N.Y. 2003). On January 31, 2012, the First Department’s decision in Voom H.D. Holdings LLC v. EchoStar Satellite LLC, 2012 N.Y. Slip Op. 00658 (1st Dep’t 2012) adopted the Zubulake standard concerning when a party’s preservation obligations are triggered. Read a blog posting on the Voom decision here. Most recently, on February 28, 2012 the First Department held in U.S. Bank N.A. v. GreenPoint Mtge. Funding, Inc., 2012 NY Slip Op. 01515 (1st Dep’t 2012), that, consistent with Voom’s “adopt[ion] [of] the standards articulated by [Zubulake] in the context of preservation and spoliation, [it was] persuaded that Zubulake should be the rule in this department, requiring the producing party to bear the cost of production to be modified by the IAS court in the exercise of its discretion on a proper motion by the producing party.”

Play Nice or Pay the Price: Failing to Cooperate in Creating Preservation Protocols Can Result in Significant Consequences

The dual issues of over-preservation and proportionality took center stage in a recent Southern District of New York class and collective action litigation, leading to a Magistrate’s opinion in Pippins v. KPMG, No. 11-377 (S.D.N.Y. Oct. 7, 2011), and a District Court’s affirmance in Pippins v. KPMG, Civ. No. 11-377 (S.D.N.Y. Feb. 3, 2012), which are sending shock waves through the e-discovery community. The effect of those shock waves here is particularly acute for FLSA and other employment-related class action defendants where the targeted company often possesses and controls ESI pertaining to sometimes thousands of potential plaintiffs.

Non-Party E-Discovery Obligations in New York – A Question of Proportionality

In a rare New York State appellate decision concerning e-discovery, the First Department took the opportunity to address claims by a subpoenaed nonparty of inaccessibility of electronically stored information (ESI). The case, Tener v. Cremer, 2011 N.Y. Slip op. 6543 (1st Dep’t 2011), involved an alleged defamatory post originating from one of New York University’s computers. Plaintiff served NYU with a subpoena seeking identification of persons who accessed the Internet on a certain date via a certain IP address.

Knockout Punch: Claims of Futility & Computer Crashes Not Enough to Prevent Key Word Searches Requested by Former Champ

Sports. Steroids. E-Discovery? Former middleweight champion Shane Mosley asserted claims of defamation against defendant Victor Conte, owner of Bay Area Laboratory Cooperative (BALCO), regarding Conte’s statements that Mosely allegedly used illegal steroids in his championship bout with Oscar De La Hoya. Mosely requested that a computer forensics expert be permitted to conduct key word searches on defendant’s computer hard drives and equipment. Defendant objected, claiming that all relevant documents had been disclosed and that a computer search would be futile. The New York Supreme Court disagreed. Mosley v. Conte, No. 110623/2008, 2010 N.Y. Misc. (Sup. Ct. New York Co. Aug. 17, 2010).

Trial Court Says New York’s “Requester Pays” Rule Applies Only to Data That Is Not Readily Available

As discussed in a recent post, there exists a dichotomy between the New York state and federal courts with respect to which party should bear the cost of producing inaccessible data. A recent New York Supreme (Trial) Court decision held that New York’s standard “requester pays” rule only applies to data that is not “readily available.” Silverman v. Shaoul, 2010 N.Y. Slip Op. 20507, 2010 N.Y. Misc. (Sup. Ct. New York Cty. Nov. 3, 2010).