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Archive for the ‘Good Cause’ Category

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 Blurb: Faber (II); Cost Shifting Good Cause Determination

Posted by rjbiii on July 26, 2008

The following factors guide the “good cause” inquiry required under Rule 26(b)(2)(B): “(1) the specificity of the discovery request; the quantity of information available from other and more easily accessed sources; (2) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’
resources.” Fed. R. Civ. P. 26, advisory committee’s notes (2006).

Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 at *3-4 (D.D.C. July 7, 2008 )

Posted in 4th Circuit, Case Blurbs, D.D.C., FRCP 26(b), Good Cause, Magistrate Judge John M. Facciola | 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: Benefirst; Good Cause Analysis-Two factors on redundancy and availability of data

Posted by rjbiii on December 28, 2007

[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 two and three: The quantity of information available from other and more easily accessed sources; and The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources.]

The gravamen of the Plaintiffs’ Amended Complaint is that BeneFirst mishandled their employees’ medical claims by failing to determine eligibility for payment, the availability of co-payment and co-insurance, and subrogation. The processing of the claim forms was presumably the mechanism for making these determinations. While the Amended Complaint and subsequent pleadings are silent, the relevant time period appears to be from 2001 to 2004.*

*I so find because this litigation was commenced in 2005 and it seems safe to assume that none of the original claim forms and medical bills were still in existence at that time (if they were, BeneFirst presumably would have retained them).

According to BeneFirst, the original claim forms and medical bills were processed by hand, kept for 60 days, converted to a digital image and then destroyed. Therefore, digital images which constitute the information requested by the Plaintiffs are in the custody and control of BeneFirst and are not available through any other source.

These factors favor the Plaintiffs.

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

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

Case Blurb: Benefirst; Good Cause Analysis-Specificity of Discovery Request

Posted by rjbiii on December 28, 2007

[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. This is the first factor: The specificity of the discovery request.]

BeneFirst’s Motion seeks reconsideration of this Court’s earlier discovery order which ordered BeneFirst to produce “all claims files, including the actual bills in BeneFirst’s possession or control.” The parties have responded intelligently and vigorously to this Order and there is no misunderstanding or confusion about the specificity of the information sought by the Plaintiffs.

This factor favors the Plaintiffs.

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

Posted in 1st Circuit, Case Blurbs, D. Mass., Discovery Requests, FRCP 26(b), Good Cause, Magistrate Judge Timothy S. Hillman | Leave a Comment »

Case Blurb: WESTLB AG; Who bears the cost of production?

Posted by rjbiii on August 29, 2007

There is a presumption “the responding party must bear the expense of complying with discovery requests.” Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y. 2006) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978)).
Under Rule 26(c), a district court may issue an order protecting the responding party from undue burden or expense by “conditioning discovery on the requesting party’s payment of the costs of discovery.” Id.
Such an order may be granted only on the motion of the responding party and “for good cause shown.” Id. (citing Fed. R. Civ. Proc. 26(c)).
The Responding party has the burden of proof on a motion for cost-shifting. Id. (citing Zubulake I, 217 F.R.D. at 318).

Posted in 2nd Circuit, Case Blurbs, Cost Shifting, FRCP 26(c), Good Cause, S.D.N.Y, Undue burden or cost | Leave a Comment »