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Case Summary: Seven Seas Cruises; Gaps in the Production Examined

Posted by rjbiii on March 24, 2011

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, 09-23411-CIV-UNGARO/SIMONTON, 2011 U.S. Lexis 19465 (S.D. Fla., Feb. 19, 2011).

Plaintiff Seven Seas initiated the action against multiple defendants, claiming damages from defendants’ “failure to provide proper ship management, care and oversight for several cruise ships…”. Specific accusations included, inter alia: negligent representations, negligence, and breach of contract. After defendants answered, and both sides filed tit for tat motions for summary judgment, the court issued an order granting a motion to compel filed by Plaintiffs. The motion required defendants to:

  • Identify which employees’ systems had been searched;
  • Explain the absence of certain documents from production; and
  • Describe search terms used to conduct ESI searches.

The order allowed that after defendants filed an affidavit with the information required by the order, plaintiffs were free to renew their motion for to compel further discovery. They elected to do exactly that, resulting in this opinion.

Plaintiffs’ position:

Plaintiffs maintain that they have discovered “gaps” in the production by plaintiffs, despite defendants’ repeated assurances to the contrary. First, plaintiffs contend defendants searched (and produced) the ESI for a mere nine employees, failing to search other custodians likely possessing relevant data. Seven Seas had submitted a list of 19 employees/custodians or email addresses that were incorrectly excluded from searches.

Next, Seven Seas argue that the production for those custodians that were searched was incomplete. To bolster their claim, plaintiffs identified specific time frames where ESI was not produced for those custodians. They claimed this was the case for at least four custodians. Plaintiff’s attorneys approach in pressing their case is described by the court:

At the hearing, Plaintiffs chronologically recounted each request made by Plaintiffs through the course of discovery regarding the production of ESI, and also reiterated the representations made by the Defendants in response to those requests. Generally, throughout the course of the ESI discovery, Defendants assured Plain-tiffs that Defendants were conducting complete ESI searches for materials responsive to Plaintiffs’ requests. Plaintiffs contend, however, that each time such production or representation regarding the thoroughness of the production was made, that Plaintiffs later found out that the production was not, in fact, complete.

In addition, throughout the hearing, Plaintiffs pointed to statements made by Defendants in submissions to the Court wherein Defendants repeatedly asserted that all relevant custodians’ computers and laptops had been searched. According to Plaintiffs, as a result of the repeated assurances by Defendants that ultimately proved to not be true, Plaintiffs have no confidence in the Defendants’ ability to conduct proper ESI searches, and further have no faith in the Defendants’ representations regarding the same.

And then they bring it home with this:

Thus, Plaintiffs argue that because the Defendants’ failure to produce all responsive ESI discovery has prejudiced the Plaintiffs and because such omissions are ongoing and intentional, that the Court should strike the Defendants’ pleadings and enter a final default judgment against both Defendants. In addition, Plaintiffs request that the Defendants be ordered to pay the costs associated with Plaintiffs having to bring the Renewed Motion to Compel.

Post Process Comment: From the outside looking in, it really looks like counsel for Seven Seas went about this the right way. We have analyzed, in the past four years, innumerable cases where the court felt the need to admonish counsel for vagueness, or making conclusory statements without backing them up with evidence. Here, counsel went through a round of “attack analytics,” (we’ll look at this in a moment) during which they analyzed the production, documented what they perceived as deficiencies, and presented their findings as argument, while including specific examples for the court to hang its hat on. Of course, we aren’t done…defendants get their chance to speak.

Defendants position:

Defendants “generally took exception” with some of the “missing custodians” included on Plaintiffs list, and supplemented their arguments with specific information to explain the absence of either custodians from the search, or for data missing for specific time periods from produced custodians.

Defendants then acknowledged that not all relevant ESI had been produced, and then conceded that “in hindsight” and e-discovery consultant or vendor should have been retained to assist them.

Post Process Comment: This is a telling admission. It is an implicit acknowledgment that eDiscovery methodologies weren’t solid due to the inexperience of their staff who were engaged in the project.

In an effort to put the best face on things, V. Ships Leisure reiterated earlier assertions (at least to effort…doesn’t seem possible that they continued to claim the production wasn’t deficient in light of their earlier admission). They also noted that they had supplemented production with additional data, and were prepared to hand over more data that very day. V Ships Leisure then noted went to the “volume defense” by noting that they had already produced hundreds of thousands of documents (ESI and hard copy). They also defended their efforts by noting that some of their custodians were overseas, complicating the logistics behind their project.

V Ships Leisure continued their arguments by stating that the bulk of the relevant evidence was contained in correspondence between plaintiffs and defendants, so plaintiffs already had most of the evidence prior to their suit. Defendants complained that Seven Seas had never alerted them to the gaps prior to filing their motion. Although defendants agreed to re-execute the searches on both already produced custodians and on “missing” custodians, they also claimed that no prejudice to plaintiffs had been demonstrated, an argument plaintiffs could not refute.

Post Process Commentary: Defendants fought back hard, but is it enough? Their admissions may be the most significant part of their arguments, but perhaps their efforts in already producing substantial volumes of data, and the potential lack of prejudice to plaintiffs will carry the day.

The court began by reciting the law behind FRCP 37.

Federal Rule of Civil Procedure 37 addresses a litigant’s failure to make disclosures or to cooperate in discovery and sets forth sanctions that may be imposed by a Court. Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Thus, Federal Rule of Civil Procedure 37 gives a district court the power to enter a default, strike pleadings, or render judgment against a party that disobeys the court’s discovery or pretrial scheduling orders. However, the severe sanction of a default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders. In addition, Rule 37(b) only permits imposition of the ultimate sanction if a party willfully or in bad faith failed to obey a discovery order. It is not justified under Rule 37(b) if a party’s failure to comply with a discovery order was caused by simple negligence or a misunderstanding of the court order. If the party does not provide a credible explanation of how he interpreted an order compelling discovery in a way that excluded certain documents from the scope of the order, the party’s unsupported assertion that it misunderstood the order is insufficient, and it is not clear error for the district court to find that the party’s failure to comply with the discovery order was willful and in bad faith. Further, when a party claims that he was unable to produce documents in the time allowed by the court, but he does not produce any evidence to support the argument, a district court’s finding of willfulness is not clearly erroneous. Nonetheless, a district court is not required to first impose lesser sanctions if the lesser sanction would be ineffective.

Defendants’ Failure to Produce ESI:

The court began by reciting a history of disputes caused by defendant’s failures to produce or thoroughly search for potentially relevant ESI. The court then admonished both parties for failing to conduct an early meet and confer:

[I]t appears that many of the disputes related to the production of e-discovery could have been significantly narrowed, if not totally avoided, had the Parties held an e-discovery conference early-on in the litigation as required by Federal Rule of Civil Procedure 26(f), wherein issues regarding disclosure and production of ESI could have been thoroughly discussed.

Continuing on, the court articulated its first major conclusion:

[I]t is clear that the Defendants have failed to properly conduct complete, thorough and timely searches of ESI responsive to the Plaintiffs’ discovery requests. There is no doubt that the manner and method in which the Defendants conducted their ESI searches were wholly inadequate.

That said, the court noted that because the production gaps had not yet been plugged, the damage done to plaintiff’s case could not yet be determined. The court also applied some blame to Seven Seas, noting that they could have identified missing custodians or data sources earlier. While the court granted that defendant’s deficiencies were more likely due to its staff’s “unfamiliarity” with e-discovery, and not any malfeasance, the continued inability to conduct EDD competently at this point in the game is inexcusable.

On this point, the court stated:

Indeed after this Court’s January 19th Order, if not before, the Defendants should have reasonably known that they needed to retain an E-discovery consultant to ensure that they properly conducted their ESI searches.

Because of this, said the court, sanctions were appropriate. The ordered defendants to engage an electronic discovery vendor to assist in searching and producing ESI from certain custodians included on plaintiff’s “missing custodian list.” Plaintiff’s request to re-execute searches over the data sets associated with custodians whose ESI had already produced was denied, as in the court’s view, the production of this data was sufficient.

The court concluded that the appropriate sanctions were to:

  • Deny defendants motion for summary judgment;
  • Award plaintiffs attorneys costs, to be paid by defendants.

The court declined to enter a default judgment on behalf of plaintiffs, as had been requested in the Motion to Compel.

Post Process Comment: The sanctions imposed might be considered fairly mild, considering some of the language contained within the opinion. The biggest mitigating factor for defendants appeared to be the lack of any evidence concerning damage done to plaintiffs case by the omissions in production.

I’d like to reflect a bit on the evidence and arguments brought by Plaintiffs to demonstrate that deficiencies exist in the production. There are two common methods of attacking document productions. You can impugn the results–that is, the contents in the production dataset–or you can question the methodology that produced the dataset. Here, we see examples of both.

In attacking the production, plaintiffs examined the production and reviewed what custodians might be missing. This can be done by reviewing correspondence. When you get significant email or mail traffic going to or coming from individuals whose data has not been produced, a flag should come up. And that’s what was done here.

Another way to look at custodians or data sources is to obtain knowledge of opposing party’s IT systems to ensure that all repositories were searched. Perhaps a Sharepoint site was established where an implicated project’s documents were stored, but not searched or produced.

By attacking the results, you eventually hope to discover a weak methodology or holes in the workflow…because merely pointing out bad results can sometimes be dismissed by legitimate factors (so-called safe harbor deletions, or data residing in sources which are “not readily accessible”).  Of course, if production results are obviously deficient, then perhaps that in itself can provide sufficient ammunition to warrant sanctions or other measures.

Next, plaintiffs looked at material from those custodians whose data was produced, and analyzed its completeness by focusing on chronology. This “production gap” analysis has proven very effective, in my experience. Sometimes such gaps can be legitimately explained, but their existence, especially across multiple custodians, should be explored.

Posted in 11th Circuit, Case Blurbs, Cooperation Between Parties, Cost of Discovery, Discovery Requests, Duty to Disclose, Duty to Produce, FRCP 26(f), FRCP 37, Magistrate Judge Andrea M. Simonton, Meet and Confer, Motion to Compel, S.D. Fla., Sanctions | 2 Comments »

Case Summary: Nissan N. Am; Court examines Collection Protocol and Request for Protective Order

Posted by rjbiii on March 21, 2011

Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., CIVIL ACTION NO. 09-CV-11783, 2011 U.S. Dist. LEXIS 16022 (E.D. Mich. Feb. 17, 2011).

Nissan had already produced “1.79 million” pages of documents, and 84,000 pages of documents from its non-party parent company. The court had ordered Nissan to supplement this production with information specifically identifying data sources not previously searched because, in Nissan;s view, they were “not reasonably accessible.” Johnson Electric, defendant company, crafted “informal” discovery requests requesting that Plaintiff produce:

  1. a data map showing what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived;
  2. document retention policies;
  3. tracking records and/or requests for restores; and
  4. backup policies.

Johnson Electric believed Nissan was obligated to produced the above to comply with the court’s order. Nissan responded by filing for a protective order denying Defendant discovery on:

  1. system-wide searches of Plaintiff’s systems and custodians beyond what has already been provided;
  2. sources identified by Plaintiff as “not readily accessible,” including back-ups;
  3. Plaintiff’s record retention practices or disaster recovery backup policies;
  4. Plaintiff’s tracking records and requests for computer restores to IT and vendors; and
  5. a “data map” to provide information on all of Plaintiff’s systems.

Johnson Electric filed a brief in response, and a cross-motion to compel Nissan’s compliance with the earlier order. Johnson Electric also asked the court to impose sanctions on Nissan, arguing that Nissan had failed to comply with their discovery obligations under that order.

The court began by stating the governing standard for its analysis, and the party’s respective arguments:

Federal Rule of Civil Procedure 26(c) allows the Court to issue a protective order for good cause shown to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Plaintiff has the burden of showing good cause for a protective order. Plaintiff first asks for a protective order denying Defendant discovery of system-wide searches of Plaintiff’s systems and custodians beyond what Plaintiff has already provided. Defendant argues in response that it has not asked Plaintiff to conduct additional searches. Rather, Defendant argues that it merely asked for confirmation that Plaintiff searched its systems for relevant ESI for forty-one employees who are either members of the Task Force assigned by Plaintiff to the recall issue, or who are listed in Plaintiff’s Rule 26 disclosures.

About those Additional System-Wide Searches…
The court concluded that Nissan was barking up the wrong tree. “Letter correspondence” proved that Johnson Electric did not ask for additional searches, but rather that Nissan merely confirm that the computers, email accounts, network shares, and databases associated with 41 specific custodians had been searched. The court ruled against Nissan here, because it couldn’t deny Johnson Electric something for which it hadn’t asked.

Data Sources that aren’t readily accessible
The court first noted Nissan’s description of its Identification protocol:

[] Plaintiff claims to have searched Outlook email data and PST files; hard drives on individual computers, network shares mapped as various drive letters; and the ANEMS, IDOCS, IDEAS, GCARS, WRAPS, CPIA, VHF, CICS PO system, and Legacy business databases. In addition, Plaintiff states that it identified key custodians who were likely to have responsive information relevant to this case and had their documents searched. Plaintiff also asserts that it requested documents and information from its non-party parent company, and that both it and its parent company searched hard copy files for paper documents, for documents stored on CD, DVD, or other external sources, and for physical parts.

Plaintiff has identified in table format electronic data sources identified by key custodians as being potential sources of responsive information and claims that it identified, processed, and produced responsive information from these systems. (Docket no. 79 at 4-7). Plaintiff contends that the only systems it did not search are its disaster recovery or backup systems for email, network shares, and business databases because they are not readily accessible.

Nissan argued that information on its back-up systems are not reasonably accessible because of “undue burden and cost,” evidently supported by an estimate submitted to court. Nissan further contended that searches over these sources wouldn’t produce any new data “because the information on these systems is duplicative of information on [Nissan’s] main systems,” which have already been examined.

The court quoted FRCP 26(b)(2)(B):

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue bur-den or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

The court agreed with Nissan that it had shown “that Plaintiff’s backup systems are not reasonably accessible and that Defendant has not shown good cause to search these systems.” Alas for Nissan, however, the court once again stated that Nissan’s argument were off point, stating that Johnson Electric did not appear to ask Nissan to search their back-up systems, but rather, “asked for Plaintiff’s backup policies, and its tracking records and requests for restores, claiming that data that has been restored is reasonably accessible.” The court concluded that Nissan had not shown “good cause” to preclude Johnson Electric from seeking discovery of this data. As Johnson Electric had not asked for searches of back-up systems, there was no reason for the court to grant Nissan’s request on that issue.

Retention Policies

The court quickly denied Nissan’s request to protect it from having to produce its retention policies, stating that Nissan failed to show “good cause” to preclude the production request.

Data Map

The court noted that Johnson Electric had asked Nissan for a data map “to show what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived.” The court further noted that Johnson Electric attempted to tie Nissan’s failure to provide the data map to non-compliance to the previously mentioned court order requiring supplemental production from Nissan.

FRCP 26 requires certain mandatory disclosures be made. Nissan claims that Johnson Electric has failed to commit to specific search terms or system limitations. The court warned Johnson Electric that if true, it could see no reason for such a failure. Beyond that, there was no connection between the previous court order and this request from Johnson Electric. This request, the court said, was for new material, separate and distinct from that associated with the earlier order. Although the court could not see compelling production of a data map, it again stated that Nissan had failed to show good cause to preclude production. The court, therefore, denied Nissan’s motion for a protective order, both on this part, and in whole.

Posted in 6th Circuit, Case Summary, Collection Protocol, Data Retention Practices, Duty to Disclose, E.D. Mich., FRCP 26(b), FRCP 26(c), Good Cause, Magistrate Judge Mona K. Majzoub, Objections to Discovery Requests, Protective Order, Reasonably Accessible, Undue burden or cost | Leave a Comment »

Case Summary: AccessData; Effects of German Blocking Statute on Discovery Obligations

Posted by rjbiii on January 27, 2010

AccessData Corp. v. ALSTE Techs. GMBH, 2010 U.S. Dist. LEXIS 4566 (D. Utah Jan. 21, 2010).

Background: In May, 2005, AccessData and ALSTE Technologies GmbH (“ALSTE”) entered into a contract allowing ALSTE to resell to their customers. Since executing the agreement, ALSTE has sold “hundreds, if not thousands” of AccessData’s products. AccessData sued ALSTE for breach of contract, alleging that over $79,000 in invoices had not been paid for its FTK toolkit 2.0 software. While ALSTE admits that it hasn’t paid the invoices in question, it asserts that it shouldn’t be made to, as the software is defective. ALSTE also filed a counterclaim for the breach of a technical support agreement requiring AccessData to pay ALSTE $2,000 to $4,000 per month to cover technical support for users of AccessData’s products in Germany who were not also customers of ALSTE.

Procedural History: AccessData made requests to ALSTE for the production of documents containing information on customer complaints and any resulting injury suffered by ALSTE. AccessData also propounded interrogatories asking ALSTE to provide information and document regarding any technical support it provided non-customers under the Technical Support Agreement. ALSTE objected to the interrogatories and production requests, contending they were: 1) overly broad, unduly burdensome, and sought irrelevant information, and 2) the disclosure of information relating to third parties identities would violate German law. Access then filed the motion to compel on which the court rules in this opinion.

Discussion: The court stated that ALSTE assertion that providing personal information about its customers and their employees “would be a huge breach of fundamental privacy laws in Germany,” was not backed up by reference to any specific rule or law. ALSTE failed to cite any provision of the German Data Protection Act (GDPA) or German Constitution to back-up its claim. The court then noted that I, Section 4c of the GDPA, entitled “Derogations,” allows for the transfer of personal information to countries without the same level of data protection if the data subject gives his or her consent, or the transfer is necessary or legally required for the establishment, exercise, or defense of legal claims. The court wrote that ALSTE had not described any difficulties in obtaining consent, or explained why the provisions would not apply to this case.

Even in the event that ALSTE had overcome those challenges, the court stated that it disagreed with ALSTE’s assertion that the court must comply with the Hague Convention’s rules governing disclosure of evidence to courts in foreign countries. Citing Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 544, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987), the court noted that the law in the U.S. was: “It is well settled that such [blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”

The Supreme Court referenced the American Law Institute summary of the interplay between blocking statutes and discovery orders generally:

“[W]hen a state has jurisdiction to prescribe and its courts have jurisdiction to adjudicate, adjudication should (subject to generally applicable rules of evidence) take place on the basis of the best information available . . . . [Blocking] statutes that frustrate this goal need not be given the same deference by courts of the United States as substantive rules of law at variance with the law of the United States.”

Ultimately, the court decided on this issue to overrule the objections to the discovery request and required ALSTE to search through their data repositories and produce the requested data.

Posted in 10th Circuit, Blocking Statutes, Case Summary, D. Utah, Discovery Requests, Duty to Disclose, Duty to Preserve, Duty to Produce, Hague Convention, International Issues, Magistrate Judge Paul M. Warner | Leave a Comment »

Case Blurb: Thai Heng Chang; Court orders immediate production of e-mail from previously undisclosed account

Posted by rjbiii on September 16, 2008

Post Process: The court granted Plaintiff’s motion to compel, and motion to impose sanctions for inadequate discovery. The court delayed determination of appropriate sanctions until a later date. Below is an excerpt of the opinion, discusses Defendant’s undisclosed yahoo e-mail account.

At issue are [inter alia]: emails from the account edsmith1818@yahoo.com…
Plaintiff contends that it only recently learned of another email account used by the Defendant that should have been identified in response to Interrogatory No. 2, which Plaintiff served upon Defendant on November 6, 2007. Plaintiff contends that Defendant should supplement his document production to include these emails, which it alleges contain highly relevant information crucial to the issues raised in this case.

Specifically, Plaintiff contends that Defendant used this specific email account to engage in the activities upon which this entire lawsuit is based. Defendant represents to Plaintiff and the Court that he cannot produce the emails because they have been destroyed by Yahoo! He offers a copy of a generic response from Yahoo! regarding deactivating accounts, but Plaintiff has attached to its motion a copy of a letter from Defendant’s counsel to Yahoo! regarding a subpoena served in the Georgia case for the hankchang138@yahoo.com account. Nothing in that letter indicates a problem with Yahoo! complying with a subpoena for emails in that account despite Defendant’s assertion that they had been deleted. Perhaps Yahoo! has a process for obtaining emails from deactivated accounts as well. Regardless, the Court does not at this time accept Defendant’s explanation that production of these documents is “impossible,” particularly given the important evidentiary value of these emails and the feeble offering by Defendant in support of his contention. The Court further finds that Defendant’s representation that he was being “completely truthful” when he did not identify this account because he knew it would be impossible to ultimately produce these emails, to be sanctionable. It will figure largely into the sanctions ultimately awarded in this matter if it is learned that Defendant’s failure to identify this account earlier is the cause of the alleged impossibility.

As an initial matter, Defendant shall immediately make all possible efforts to obtain the emails in account edmith1818@yahoo.com and shall then produce all documents in this account without further objection or delay…The Court will not accept Defendant’s position that he cannot produce these emails until assurance is given from an executive at Yahoo! responsible for such tasks that this request is indeed impossible.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *1 (N.D.Fla. Aug. 29, 2008 ).

Posted in 11th Circuit, Case Blurbs, Data Sources, Duty to Disclose, Duty to Produce, email, Magistrate Judge Allan Kornblum, N.D. Fla., Sanctions | Leave a Comment »

Case Blurb: In re 11th Liab. Ins. Coverage; Attorneys’ obligations in Discovery

Posted by rjbiii on August 10, 2008

Discovery is run largely by attorneys, and the court and the judicial process depend upon honesty and fair dealing among attorneys. Thus the court may impose appropriate sanctions on a party that, without substantial justification, fails to disclose information required by Rule 26(a) or 26(e)(2). A failure to disclose under Rule 37 encompasses both the destruction of evidence, or spoliation, and untimely production of documents and information required to be produced.

In re September 11th Liab. Ins. Coverage Cases, 243 F.R.D. 114, 31-32 (S.D.N.Y. 2007).

Posted in 2nd Circuit, Attorney Liability, Case Blurbs, Duty to Disclose, Duty to Preserve, Duty to Produce, FRCP 26(a), FRCP 26(e), Judge Alvin K. Hellerstein, S.D.N.Y | Leave a Comment »

Case Blurb: Younessi; Court Weighs Trade Secrets’ need for Secrecy vs. Discovery’s Need for Disclosure

Posted by rjbiii on July 3, 2008

[Producing Party] claims that production of its hard drives would necessarily reveal its trade secrets. Trade secrets have long been recognized as property. Because of their fleeting nature, once trade secrets are disclosed to outside parties they lose their value and the property right is extinguished. The Court recognizes [Producing Party’s] interest in keeping its trade secrets out of the public eye, and particularly away from its competitors.

[Requesting Party’s] request for [such records] are highly relevant. Even if [Producing Party] cannot reasonably produce the actual content of communications, [Requesting Party] could use records produced which indicate dates and times of communications for purposes of deposition and cross examination. Given the nature of [Requesting Party’s] allegations, it is reasonable to assume that none of the witnesses to such communications will be forthcoming in testifying without some of the information sought through discovery to direct their questioning. This meets the “good cause” standard.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 at *2 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Duty to Disclose, Duty to Produce, Good Cause, Judge Ronald B. Leighton, Objections to Discovery Requests, Trade Secrets, W.D. Wash. | Tagged: , | Leave a Comment »

Case Blurb: Benefirst; Good Cause Analysis-Seventh Factor

Posted by rjbiii on February 28, 2008

[Ed.-The court found that medical claim forms, requested by Plaintiff, would not be reasonably accessible. It then launched into an analysis to determine whether plaintiffs proved that “good cause” existed to compel production notwithstanding the accessibility issue. This blurb is from the analysis of seven factors. These are factors four and five: The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; and Predictions as to the importance and usefulness of the further information;]

The parties resources.

While the Defendant has understandably engaged in a lengthy discussion of the cost of production, neither party has provided the court with any information about their resources. BeneFirst does represent that they no longer have a full time staff and that in order to retrieve the images that they would have to hire temporary help. At the same time, as previously noted, the Plaintiffs have significantly narrowed the breadth of their request and therefore, the time and cost for BeneFirst to produce the requested information should be significantly reduced.

Given the lack of information available to the Court, this factor is neutral.

W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007)

Posted in 1st Circuit, Case Blurbs, Cost of Discovery, Cost Shifting, D. Mass., Discovery Requests, Document Retention, Duty to Disclose, Duty to Produce, FRCP 26(b), Good Cause, Magistrate Judge Timothy S. Hillman | Leave a Comment »

Case Blurb: Phoenix Four,

Posted by rjbiii on August 28, 2007

Rule 26(e)(1) requires a party to seasonably amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is materially incomplete or incorrect and if the other parties have not already been made aware of the additional or corrective information through the discovery process or in writing. Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y 2006).

Posted in 2nd Circuit, Discovery, Duty to Disclose, FRCP 26(e), S.D.N.Y | Leave a Comment »