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Archive for the ‘Overly Broad Request’ Category

Case Summary: MFormation Technologies; Court looks at how data is ‘Ordinarily maintained’

Posted by rjbiii on November 27, 2009

Espy v. Mformation Techs., 2009 U.S. Dist. LEXIS 81832 (D. Kan. Sept. 9, 2009)

Factual Background: Plaintiff (Brian Espy) brought this action to recover commissions for sales made while in the employ of defendant company (Mformation). Plaintiff resigned from the company because of disagreements over the method of calculating those commissions. There was also a dispute regarding the value of the accounts for which the commissions would be paid.

In late 2007 or early 2008, defendant company was positioning itself for sale. As part of that process, the company established a secure website to which it published much confidential financial information about itself. Items published included such things as articles of incorporation, board and stockholder meeting minutes, past financial statements, and future financial forecasts of revenues. Mformation limited access to this website to companies and individuals who obtained a secure password from Mformation. The website collected information as to who entered the website and when, not only as to the company that was making the contact, but more specifically the individuals who accessed the site.

Plaintiff contends that the company would have had to have include information on the value of the Clearwire account (the largest of Plaintiff’s accounts for which he sought commissions), and he sought to obtain names of prospective purchases who may have been privy to this information. During deposition, Mformation CEO Mark Edwards refused to provide this information, claiming that the information was privileged and confidential, and that the request was not made to lead to the discovery of admissible evidence. Defendants did, however, state that “all of the representations made to all the third parties are contained in a CD of the secure website which Defendants finally located and provided to the court for in camera inspection.”

Before the court were multiple motions by plaintiff to compel production, and a motion that sanctions be imposed for failure to produce documents.

Identity of Third Parties & continuation of Edwards’ deposition

Defendants represented to the court that all information provided to prospective third-party purchasers about the value of the company was located on the secure website, and that no further materials existed from follow-up discussions or meetings. Certain emails which were attached as exhibits convinced the court that these representations were false, despite defendants’ continued assertions that of the accuracy of those statements. In light of this, the court required defendants to produce to Plaintiff the CD containing the contents of the secure website and certain hard copy documents that were previously produced to the court for in camera inspection.

Defendants argued that because these materials were confidential and proprietary, they should be allowed to produce a redacted version of the material, or have a special master appointed at Defendants’ expense to govern this particular dispute. The court disagreed, however, saying that while it was understood that these materials were confidential, they were also dated, as none of the information includes current financial information or projections.

The court also granted Plaintiff the right to depose any prospective third party purchaser had any direct communications with Mformation or its representative. The court accepted defendant’s offer to produce its 30(b)(6) witness for a deposition, scheduled earlier but cancelled due to that witness’s illness. Finally, in light of the fact that it appeared that responsive data associated with third party prospective purchasers had not been produced by defendant, the court ordered defendant to go back and review its files and records and produce anything it missed first time around.

Documents presented to board of directors concerning Clearwire contract

The court noted that it appeared that documents associated with the Clearwire contract not necessarily involving representations to third parties. The court stated that such documents presented to it for in camera review, in the form of a presentation made to the board of directors during a meeting of that group. Defendants argue that they produced any relevant documents in this category, but the judge noted that they presumably did not produce this document, due to its presence in the in camera review. The court ordered the defendants to produce any such documents that might have been missed in previous productions.

Financial records of Mformation and receipt of payments from contracts booked by Plaintiff

Plaintiffs requested that all documents related to the financial condition of Mformation between the months of December 2007 through May 2009. Defendant’s objected that this request was overly broad and burdensome, and not calculated to lead to the discovery of admissible evidence. Plaintiffs argued that it was entitled to the information because of Defendant’s position (either explicit or implied) that it cannot pay certain commissions. The court agreed with Defendants that the request was extremely broad and could encompass a substantial volume of records, and concluded that plaintiffs reason were not sufficient to mandate a production of all documents encompassed in the request. The court decided to require all financial information concerning the receipt of payments from all contracts for which Plaintiff is seeking commissions. The rub here is that Defendant claimed that it had already produced these documents. The court seemed to express its concern about being able to identify these documents within the large document collection already produced to plaintiff.

Plaintiff complained that defendant’s documents were produced in electronic format, without bates stamps and not categorized in response to the specific requests or interrogatories and that this caused Plaintiff difficulty in accessing and reviewing these records. Defendants responded to this complaint by representing that the documents were produced in the manner in which they are stored and kept in the usual course of the business.

The court then discussed the interpretation of FRCP 34, which allows production as documents are maintained in the usual course of the producing party’s business. The court noted that in attempting to define the requirements that should be place on a producing party who chooses to produce documents in the manner they are normally maintained, the courts have attempted to balance the burden on the respective parties. Generally, courts have concluded that simply dumping a mass of documents on the requesting party may not satisfy the rule’s requirements, even though the undifferentiated mass of documents are in the same form as maintained by the producing party. The court concluded that Defendants should be required to specifically identify, by index or otherwise, those specific financial records that relate to receipts of payments from all contracts for which Plaintiff is seeking commissions, and to specify, by index or otherwise, any financial records of Mformation, from December 2007 through May 2009, that specifically relate to treatment of those contracts, specifically including the Clearwire contract. The court also ordered Defendants to produce documents associated with a separated, but related, request to produce certain financial records not previously provided, some of which were unavailable at the time of the request.

Plaintiff’s Request for Sanctions
The court then turned its attention to Plaintiff’s two motions for sanctions. First, Plaintiff requested that he be reimbursed for all costs associated with discovery from Clearwire, including costs for service of a subpoena to Clearwire and the costs for any deposition of Clearwire, including travel to Seattle, court reporter fees and attorneys fees at $ 250 per hour. Plaintiff also sought all expenses associated with the continuation of the depositions of [Mformation CEO] Mark Edwards and the Rule 30(b)(6) deposition of Defendant , including travel to Defendant’s location in New Jersey, court reporter costs and attorneys fees.

In its second motion, Plaintiff repeated its earlier requests, Plaintiff also sought an order striking Defendants’ responsive pleadings and entering judgment in Plaintiff’s favor and the costs associated with the filing of pleadings concerning the discovery dispute.

The court reiterated its determination that that Defendant be required to produce Mark Edwards for the continuation of his deposition and to produce Mformation’s Rule 30(b)(6) witness for deposition, were to be taken at Defendants’ cost, and that all travel and court reporter’s expenses for both of these depositions were the responsibility of Defendants. The court also ordered Defendants to pay attorneys’ fee for the time spent in completing the deposition of Mark Edwards, capped at $1,250.

The court, however, did not grant Plaintiff’s its request for attorneys fee for conducting the Rule 30(b)(6) deposition of Mformation, as this deposition was merely delayed due to the witness’s illness. This is especially true when one considers that Defendants have voluntarily offered to bring the 30(b)(6) witness to Kansas City for deposition. The court also ordered Defendants to pay he costs and attorneys fees required to file such motions. The court denied the request for all other expenses, without prejudice for renewal in the future.

Motions for additional sanctions were denied.

Posted in 10th Circuit, Case Summary, D. Kan., Data Dump, Discovery Requests, FRCP 30(b)(6), FRCP 34, Magistrate Judge Donald W. Bostwick, Objections to Discovery Requests, Overly Broad Request, Relevance, Sanctions | Leave a Comment »

Case Blurb: Cunningham; Relevancy, and Who has the Burden to Prove it

Posted by rjbiii on July 21, 2008

[P]ursuant to Fed.R.Civ.P. 26(b)(1), any discovery sought must be relevant. Relevancy is broadly construed, and a request for discovery should be considered if there is “any possibility” that the information sought may be relevant to the claim or defense of any party. See, e.g., Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D.Kan.2001). “When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure .” Simpson v. University of Colorado, 220 F.R.D. 354, 350 (D.Colo.2004) (citations omitted). Further, the objecting party cannot “sustain this burden with boilerplate claims that the requested discovery is oppressive, burdensome or harassing.” Id. (citation omitted). However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008 )

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery Requests, FRCP 26(b), Magistrate Judge Kristen L. Mix, Objections to Discovery Requests, Overly Broad Request, Relevance | Leave a Comment »

Case Blurb: Younessi; Court Fashions Protective Order to Allow for Discovery but Protect Trade Secrets

Posted by rjbiii on July 3, 2008

The Court is convinced that this need is strong enough to warrant discovery from [Producing Party] and the Motion to Quash is DENIED. However, some form of protective order is appropriate and the Court now turns to what form that production should take.
In situations involving information which is appropriately kept private, the Court may fashion restrictions on the form and method of disclosure. See Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Cal.1999). In the interest of protecting private information such as trade secrets or privileged documents, the Court can order the responding party’s attorneys to search for all documents consistent with the subpoena and to produce only those which are relevant, responsive, and do not disclose trade secrets. See, e.g., id. The Court finds in Playboy an appropriate model for this case. There, the plaintiff sought to copy the defendant’s hard drives after it learned she may have deleted emails which could potentially prove the knowledge element of plaintiff’s infringement claims. Id. at 1051. Defendant responded with concerns that privileged communications would also be recoverable under such a procedure. Id. at 1054. The court ordered the copying, but directed defense counsel to search the copy for responsive materials instead of turning over the copied drives themselves. Id. at 1055

Here, [Requesting Party] also requests to copy [Producing Party’s] hard drives, a process which might reveal not just privileged, but also trade secret information. Having [Producing Party] search its own computers is an appropriate compromise here because of the unique status of [Requesting Party] as a direct competitor and of [Producing Party] as a nonparty [third party] to the underlying suit. The elaborate copying which took place in Playboy is not necessary because there are no allegations of documents being destroyed and [Producing Party] has shown that it is responsive and willing to cooperate with [Requesting Party’s] reasonable requests.

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

Posted in 9th Circuit, Case Blurbs, Data Collection, Data Sources, Duty to Produce, Form of Production, Hard Drive Inspections, Judge Ronald B. Leighton, Objections to Discovery Requests, Overly Broad Request, W.D. Wash. | Tagged: , | Leave a Comment »

AL Case Blurb: Ex Parte Vulcan Materials; Limits on the Scope of Discovery

Posted by rjbiii on June 21, 2008

Post Process-This is a Case Blurb from the State of Alabama, whose laws regarding discovery will differ from those of the Federal Courts.

“‘The first step in determining whether the court has [exceeded] its discretion is to determine the particularized need for discovery, in light of the nature of the claim.'” Ex parte Henry, 770 So. 2d 76, 80 (Ala. 2000) (quoting Ex parte Rowland, 669 So. 2d 125, 127 (Ala. 1995) (emphasis added)). To be relevant to a constitutionally sanctioned punitive-damages review, any extraterritorial conduct of the defendant “must have a nexus to the specific harm suffered by the plaintiff.” Campbell, 538 U.S. at 422 (emphasis added). An action in one state may not be “used as a platform to expose, and punish, the perceived deficiencies of [a defendant’s] operations throughout the country.” Campbell, 538 U.S. at 420. “A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff ….” 538 U.S. at 422-23. This is so, because, “as a general rule,” a State does not “have a legitimate concern in imposing punitive damages to punish defendants for unlawful acts committed outside of the State’s jurisdiction.” 538 U.S. at 421. Thus, a litigant may not seek to support a punitive-damages award through discovery aimed at generic, undelineated out-of-state conduct.


Furthermore, discovery requests must generally be subject to reasonable temporal limitations. In Ex parte Orkin, we said:

“No bright line exists concerning the maximum period over which a litigant should be required to search for records. The length of that period depends on whether the records being searched are ‘relevant to the subject matter involved in the dispute.’ Rule 26(b)(1), Ala. R. Civ. P.; 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2008 (1994). Even then, a litigant in a fraud action must show a substantial need for discovery of records that concern transactions with nonparties, that are older than five years, and that do not directly relate to the litigant’s own claim or defense.”

Ex parte Vulcan Materials Co., 2008 Ala. LEXIS 79, 19-20 (Ala. Apr. 25, 2008 )

Posted in AL Sup. Ct. Justice Thomas A. Woodall, Alabama, Case Blurbs-AL, Discovery Requests, Objections to Discovery Requests, Overly Broad Request, Scope of Discovery, State Courts | Leave a Comment »

Case Blurb: Prof’l Basketball Club; Burden of proving objection to discovery requests falls to movant

Posted by rjbiii on March 11, 2008

In opposing discovery on the grounds of overbreadth, a party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents.” A “court must be able to ascertain what is being objected to. As such, unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” A claim that answering discovery will require the objecting party to expend considerable time and effort to obtain the requested information is an insufficient factual basis for sustaining an objection.

Here, [Producing Party] has not explained why producing the emails at issue would be unnecessarily burdensome, but merely states that producing such emails “would increase the email universe exponentially[.]” PBC also states in its moving papers that the emails add “nothing to the case except mountains of work for no return.” But a bald assertion that discovery will be burdensome is insufficient in light of Fed.R.Civ.P. 26(b)(2)(B). The Court is not permitted to presume the potential burdensome effects upon a party. The parties have already agreed upon a group of search terms that [Producing Party] previously used to search [key players’] emails and the Court assumes those terms may be used again to make further searches efficient.

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)(emphasis added)(citations removed).

Posted in 9th Circuit, Case Blurbs, Discovery Requests, Duty to Produce, FRCP 26(b), Judge Marsha Perchman, Objections to Discovery Requests, Overly Broad Request, Undue burden or cost, Vague Discovery Requests, W.D. Wash. | Leave a Comment »

TX Case Blurb: Honza; Court addresses objection to ‘overly broad’ discovery requests, court order

Posted by rjbiii on March 10, 2008

[Producing Party members] seek a writ of mandamus compelling Respondent, the Honorable Greg Wilhelm, Judge of the County Court at Law No. 1 of Ellis County, to set aside a discovery order requiring the Honzas to permit a forensic expert to create a mirror image of each of the computer hard drives in the Honzas’ office in an effort to locate two particular documents or iterations of those documents

The Honzas contend that Respondent abused his discretion because: (1) the discovery order is overbroad and authorizes an improper “fishing expedition”;…

The present discovery dispute originated with [Requesting Party’s] motion to gain access to the Honzas’ computers, which was filed about one month before trial. By this motion, [Requesting Party] sought “[i]nformation (the ‘Metadata’) contained on the actual computers of the Defendants, such as any time stamps on the Relevant Documents, versions of the Relevant Documents, if any, as well as the deletion of various versions, if any.” [Requesting Party] explained that, although the Honzas responded to a prior request for production of relevant documents in their electronic version, “the Metadata was neither produced nor made available.”

[Ed. Testimony indicated the existence of relevant documents with respect to a another transaction apparently not addressed by earlier discovery requests]

[] [Requesting Party] sought discovery of relevant documents pertaining to the [newly revealed] transaction, and the [Producing Party] complied by providing pertinent written discovery.

[Requesting Party] seeks the metadata from the [Producing Party’s] hard drives because it wants to identify the points in time when the partial assignment draft was modified in relation to the diary entry. This goes to the issue of whether [the Producing Party] altered the partial assignment after the parties concluded their agreement but before the document was presented for execution.

[Ed. The opinion then went on to list various Federal and State sources for persuasive authority in discovery law, especially with respect to ESI]

Overbroad Discovery

The [Producing Party] first contend that the discovery order is overbroad and authorizes an improper “fishing expedition.” In this regard, they argue that Respondent improperly “gave blanket approval for [the Requesting Party] to gain total access to [their] computers and all information stored on them, whether or not it has anything to do with this lawsuit.”

Although it is true that Respondent’s order gives A & W’s forensic expert [FN8]complete access to all data stored on the Honzas’ computers, the order provides that the expert is to index all forensic images acquired from the imaging process “for the limited purpose of searching (the ‘Examination Process’) for two documents, previously Bates-labeled as HONZA 00019 and HONZA 00017, which are drafts of “Assignment of Contract” and any iterations (the ‘Relevant Documents’).” The expert must then compile any documents or information which the expert believes responsive and deliver them to the Honzas to determine for themselves which are responsive to A & W’s discovery request and which they choose to withhold, providing a privilege log instead.

In addition to limiting the expert’s search to two specific documents, the order provides that no waiver of privilege or confidentiality occurs if any otherwise privileged or confidential information is observed by A & W’s counsel or representatives during the imaging process, and they are prohibited from using such information other than in compliance with the terms of the order. The forensic expert is likewise prohibited from disclosing any information observed during the imaging process. And finally, the order requires the expert and all party representatives or counsel participating in the imaging process to sign an acknowledgment agreeing that they are subject to contempt of court for any violation of the order.

Any order requiring the imaging of a computer hard drive necessarily grants the expert who is conducting the imaging process access to all data on that hard drive. Here, Respondent specifically limited the expert’s search to two documents; gave the [Producing Party] a “right of first refusal” with regard to determining which documents or information are relevant to those two documents and responsive to [Requesting Party’s] discovery request; imposed stringent limitations on inadvertent disclosures to prevent any unintended waiver of confidentiality or privilege; and placed all participants in the imaging process under a carefully drawn protective order.

Therefore, we do not agree with the Honzas’ contention that the discovery order is overbroad.

[Ed. Note that a dissenting opinion is also entered by one of the Judges hearing the case. See the order itself for the full text of that dissent, or of the opinion itself.]

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Posted in Case Blurbs, Computer Forensics, Data Custodians, Data Sources, Discovery Requests, Duty to Produce, Form of Production, Objections to Discovery Requests, Overly Broad Request, Privacy, Scope of Discovery, State Courts, Texas, TX Judge Felipe Reyna | Leave a Comment »

Case Summary: Kraft Foods N. Am.; Discovery request for documents over a 7 year period not overly broad

Posted by rjbiii on September 11, 2007

Court ruled that a discovery request seeking documents from January 1, 1999 to [April 7, 2006] did not represent an overly broad temporal scope. Although the “last discriminatory act” for the purposes of the action at bar would have occurred in April 2004, information from the two-years and three-months prior to the April 2002 liability period may be relevant to demonstrate the pattern and practice of discriminatory conduct alleged by Plaintiffs. Moreover, defendants provided no evidence that production of documents for this twenty-seven month period would impose any burden on defendants.

Court ruled “not overly broad” in departmental or organizational scope discovery requests seeking documents relating to “sales representatives” and “region managers” in the Kraft Sales Organization over the objection of the responding party. Responding party had argued that because no plaintiffs had ever held the position of regional manager, individuals in those positions were not similarly situated to Plaintiffs, making the documents irrelevant to the matter at hand. The court disagreed, finding that the requests were not overly broad on their face; that defendant’s lack of assertion to demonstrate that discovery would impose a burden; and that although the title of “region manager” no longer exists, responding party should produce documents of the position regardless of its new title.

Court ruled discovery requests seeking documents for the “Kansas City Region” were not overly broad in geographic scope, because the motives behind employment decisions made by managers at the regional level were relevant to the matter at hand. Because the some of the wrongdoing was alleged to have occurred at a regional level within defendant’s organizational structure, the court found defining the geographic scope of the requests as the Kansas City region is reasonable. Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648 (D. Kan 2006).

Posted in 10th Circuit, Case Summary, D. Kan., Discovery Requests, Duty to Produce, Magistrate Judge David J. Waxse, Overly Broad Request, Scope of Discovery | Leave a Comment »

Case Summary: School Dist. #70; Overly Broad Discovery Request

Posted by rjbiii on September 11, 2007

In a wrongful termination suit, Court disagreed with Plaintiff’s assertion that Defendant School District should have altered their document retention practices because they should have reasonably anticipated litigation in October 2004, because this was before plaintiff took FMLA leave and before the Board decided to replace plaintiff in March 2005. Furthermore, the Board could not have anticipated that all e-mails from that time on would be within the bounds of a discovery request for this particular matter. The court denied plaintiff’s request for production on this and other grounds.

Discovery Request seeking “[a]ll emails with attachments sent or received by anyone at the school since 1-1-97″ found overly broad, would clearly encompass e-mails not relevant to the litigation, and was not enforceable by the court. The court denied the Plaintiff’s request for production on this and other grounds.
Lewis v. School District #70, 2006 WL 2506465 (S. D. Ill).

Posted in 7th Circuit, Case Summary, Discovery Requests, Magistrate Judge Clifford J. Proud, Overly Broad Request, S.D. Ill. | Leave a Comment »