Category: FRCP

Court Grants Plaintiff’s Motion to Compel Defendant to Produce Pre-Class Certification Discovery

In Peters v. Credit Protection Association LP, Case No. 2:13-cv-767 (S.D. Ohio November 26, 2014), a putative class action lawsuit alleging Defendant violated the Telephone Consumer Protection Act and the FCC rules by making artificial voice and pre-taped calls, Plaintiff’s eDiscovery requests sought information regarding all debt collection calls made in Ohio

Court Rejects Defendant’s Attempt to Avoid Production Because of a Software Licensing Issue

In Pero v. Norfolk Southern Railway Co., No. 3:14-CV-16-PRL-CCS (E.D. Tenn. December 1, 2014), a railroad conductor alleged he suffered injury after trying to remove a fallen tree from a train track. Plaintiff’s eDiscovery requests requested that Defendant produce the video recording from a camera mounted on front of the train. Plaintiff alleged it needed

Does Computer-Assisted Privilege Review Obviate a Request for Human Review?

Today’s blog post involves Federal Rule of Evidence 502, which was adopted to reduce concerns that the increasing production of electronically stored information (ESI) would lead to the aggressive use of waiver in cases of inadvertent disclosure of privileged information. To paraphrase, Rule 502(d) deems that a privileged disclosure does not constitute a

Can a Database Be Too “Large and Unindexed” for an ESI Search?

Can a defendant successfully convince a court that because its electronic database is “large and unindexed,” the defendant does not have to search the database for responsive records pursuant to a plaintiff’s ESI request? Or, alternatively, if a court requires a defendant to search a “large and unindexed” database, should it shift the costs of production onto the

A Cautionary Tale: Attorney Fees Awarded After Plaintiff’s Failure to Timely Produce ESI

Under FRCP 37(a)(5)(A), if a motion to compel is granted—or if requested discovery is provided after a motion is filed—a court can require the party whose conduct necessitated the motion “to pay the movant’s reasonable expenses incurred in making the motion, including attorney fees.” The Western District of Michigan recently considered this rule in Michigan Millers

Court Denies Defendant’s Burdensome Request to Conduct a 30(b)(6) Deposition Regarding Plaintiff’s ESI Production

When is a noticed deposition unnecessarily burdensome? In Koninklijke Philips Electronics v. Hunt, Civil Action No. 11-3684 (ES) (MAH) (D.N.J. Nov. 7, 2014), Plaintiff produced electronic documents. Following the production, defense counsel interviewed Plaintiff’s IT employee regarding Plaintiff’s ESI practices.  Nine months later, Defendant noticed a 30(b)(6) deposition to further inquire

The Most Important Plaintiff eDiscovery Cases of 2014

The Year in Electronic Discovery: Part I Because electronically stored information (ESI) is now the main source of evidence in most civil litigation, courts are building case law every day that affects plaintiff trial attorneys. In Part I of our 2014 Year in Review, we highlight the most important recent cases

Plaintiff To Receive FRCP 37 Attorney Fees After Defeating Defendant’s Unjustified Motion To Compel

Under Federal Rule of Procedure 37(a)(5)(B), a court denying a motion to compel may award attorney fees to the prevailing party provided that the court does not conclude that the motion to compel was “substantially justified” or that “other circumstances [would] make an award of expense unjust.”  The party who lost the motion

When are Proposed Search Terms Overly Burdensome?

In TVIMM LLC v. McAffee, Inc., Case No. 13-cv-04545-VC(KAW)(N.D.Cal. October 15, 2014), a search term and electronic discovery dispute arose. Plaintiff eDiscovery requests sought email correspondence from Defendant. There was an agreed ESI Order, which dictated the parties were allowed five search terms. Further, they could not request “indiscriminate terms,

Is This Litigant Conflating the Dual Requirements of Federal Rule 34(b)(2)(E)?

In the patent case Ventura Corp. Ltd. et al., v. Barrett, Case No. 5:13-cv-03384-PSG (N.D.Cal. Oct. 16, 2014), pending before the court was a Motion to Compel filed by Barrett. The Motion alleged the plaintiff ESI production was unorganized and failed to be labeled to identify which documents were responsive