Archive for June 2016

Contents of Personal Computers and Email Accounts Within Scope of Discovery, Search Ordered by Court

Sunderland v. Suffolk Cty., No. CV 13-4838 (JFB)(AKT), 2016 WL 3264169 (E.D.N.Y. June 14, 2016)

In this civil rights action, the parties agreed upon search terms to identify responsive material but did not agree regarding the propriety of searching the Individual Defendants’ personal computers and email accounts. Concluding that responsive information located in the Individual Defendants’ personal repositories was within the scope of discovery, the court granted Plaintiff’s motion to compel the requested searches.

Plaintiff, a former inmate at the Suffolk County Correctional Facility, alleged that while incarcerated the Individual Defendants, “physicians employed by the County who treated Plaintiff while she was an inmate,” “acted with deliberate indifference to her serious medical needs by denying her hormone therapy for his [sic] gender dysphoria.” In the course of discovery, Plaintiff requested production of the Individual Defendants’ “documents and correspondence” related to gender dysphoria, transgender status and related issues.  Although the parties agreed on appropriate search terms, they disagreed regarding whether the Individual Defendants were required to search their personal computers and emails.

In support of her motion, Plaintiff argued that the Individual Defendants had been sued in their individual capacities and that the County’s representation of the individuals did not excuse them from their discovery obligations.

Upon analysis of the question, the court concluded that the requested information fell within the scope of relevant discovery under Fed. R. Civ. P. 26(b) “in light of Plaintiff’s allegations against the Individual Defendants and her Monell claim against the County” and indicated that it “d[id] not consider the requested discovery unduly intrusive or burdensome,” noting the limited timeframe for the search (to which the defendants did not object), the agreed-upon search terms, and the fact that Plaintiff was not seeking a forensic inspection of the personal computers.  The court also reasoned that “to the extent such documents exist on the … personal computers, they may contain information going to bias or motivation which may show why a personal computer was used for such communications, including information which may support Plaintiff’s claims of deliberate indifference . . . .”  Accordingly, the court ordered the Individual Defendants to utilize the agreed-upon terms to search their personal computers and email accounts and to produce any responsive documents or provide an affidavit confirming that no responsive materials were identified.  The court also reminded counsel of the need to “supervise and oversee” the search for and production of such information.

A full copy of the court’s order is available here.

Court Orders Native Production Absent Explanation of Allegedly Burdensome Cost and Upon Showing of Good Cause

Mitchell v. Reliable Sec., LLC, No. 1:15-cv-03814-AJB, 2016 WL 3093040 (N.D. Ga. May 23, 2016)

Addressing the parties’ dispute over the proper format of production—specifically, whether ESI should be produced in native format or PDF—the Court found Defendant failed to make an adequate showing that production of native files was cost prohibitive and that, in any event, Plaintiff had shown good cause, and ordered production of ESI in native format.

In this employment discrimination case, Defendant resisted production of ESI in native format, arguing that it would cost approximately $3000 more to process and produce in native format than it would to produce in PDF format and that the cost was unreasonable in light of the likely damages in the case, which Defendant estimated to be “less than $10,000.”

Plaintiff, in turn, argued that production of native emails and spreadsheets was necessary because they were susceptible to post hoc manipulation by Defendant and that Defendant’s statement regarding the estimated additional costs of production was “insufficient” for a number of reasons, including Defendant’s failure to explain how it arrived at the estimate, Defendant’s advertised use of “discovery management software commonly used to streamline ESI production,” and Plaintiff’s counsel’s offer to assist in downloading emails to minimize costs.  Plaintiff also asserted that damages could range from $50,000 to $300,000, plus lost wages and benefits and attorneys’ fees.

Taking up the issue, the Court considered Fed. R. Civ. P. 26(b)(2)(B), which precludes discovery of ESI shown to be “not reasonably accessible because of undue burden or cost” but which allows a requesting party to nonetheless establish good cause for production. Regarding Defendant’s assertion of burden, the Court determined that Defendant “ha[d] not explained the reason for the additional costs” and indicated that the Court was “at a loss to understand” why the production would be more costly.  Accordingly, the Court found Defendant had not “made an adequate showing that production of the native files is cost prohibitive.”

Notably, the Court also found that even if Defendant’s showing had been adequate, Plaintiff had shown good cause for production in native format. Specifically, the Court indicated it was “not at all unreasonable” for Plaintiff to wish to verify that ESI had not been manipulated, despite acknowledging that “there ha[d] been no specific reason so far” to believe such manipulation had occurred.  Additionally, the Court reasoned that although “it [did] appear that Plaintiff’s suit [was] unlikely to be of an especially high dollar value … the public value of allowing a civil-rights plaintiff opportunity to access information relevant and quite possible necessary to her pregnancy-discrimination suit far outweigh[ed] the asserted $3000 cost.”

A full copy of the Court’s order is available here.

“Just as a plaintiff may not take discovery regarding unpled claims, so a defendant is precluded from seeking discovery concerning unpled defenses.”

Lifeguard Licensing Corp. v. Kozak, No. 15 Civ. 8459 (LGS)(JCF), 2016 WL 3144049 (S.D.N.Y. May 23, 2016)

In this intellectual property dispute, the court denied Defendants’ motion to compel Plaintiffs’ production of “discoverable information relevant to the defendants’ likely defenses and counterclaims” citing Defendants’ decision to move for dismissal without filing an answer to the Complaint and reasoning, among other things, that the “plain language” of Fed. R. Civ. P. 26(b)(1)—recently amended “so that discovery now extends only as far as information relevant to claims or defenses”—“does not provide for discovery of ‘likely,’ ‘anticipated,’ or ‘potential’ claims or defenses.”

In this case, Defendants filed for declaratory judgment in the United States District Court for the Eastern District of Michigan and sought a declaration that the use of the word “Lifeguard” on t-shirts did not infringe upon Plaintiffs’ mark. Thereafter, Plaintiffs commenced an infringement action in the Southern District of New York.  Both sides then moved to dismiss the other’s cases.  Despite the pending motions and without filing an answer, Defendants served discovery upon Plaintiffs in the New York case but were dissatisfied with their response.  After Defendants’ Michigan action was dismissed for lack of personal jurisdiction, Defendants filed the instant motion to compel in the Southern District of New York.

“According to the defendants, ‘[t]his motion present[ed] the simple question of whether plaintiffs should be permitted to file a lawsuit and then, due to the pendency of a pre-answer motion to dismiss, refuse to produce (or even search for) discoverable information relevant to the defendants’ likely defenses and counterclaims.’” Specifically, Defendants asserted their right to discovery of “information that would go to possible defenses of ‘genericness [sic], descriptive use, functional use, and naked licensing.’”

Taking up the question, the court first noted recent amendments to Fed. R. Civ. P. 26(b)(1) that eliminated the “second tier” of discovery which allowed “discovery of any matter relevant to the subject matter involved in the action” and acknowledged that even prior to the amendment it was “well-established that information relevant only to claims not yet pled was beyond the scope of discovery, at least without leave of the court.” The court then concluded that the reasons for limiting discovery to claims that have been pled “apply with full force to defenses as well”:

First, it would be a waste of resources to devote discovery to issues that may never be addressed in the litigation. Second, a party and its attorney must have conducted “an inquiry reasonable under the circumstances” before filing a pleading. Fed. R. Civ. P. 11(b). Permitting discovery on unpled claims or defenses would dilute this obligation by permitting a party to file one plausible claim and then take discovery on any tangentially related potential claims before deciding whether to actually assert them. Finally, and perhaps most significantly, Rule 26(b)(1) makes no distinction between claims and defenses; to be discoverable, information must be “relevant to a party’s claim or defense.” And the plain language of the Rule does not provide for discovery of “likely,” “antcipated,” [sic] or “potential” claims or defenses.

Emphasis added.

Rejecting Defendants’ arguments that the anticipated defenses in the New York case had been raised as affirmative claims in the dismissed Michigan action and that their right to discovery in that case had been recognized by the New York court, the court reasoned that the Michigan action had been dismissed, leaving “no extant pleading to which the defendants [could] tie their requested discovery,” and that, “the pleadings in [the New York] case define[d] the scope of discovery.” Finally, the court reasoned that the problem at issue was “of the defendant’s own making,” where it was their strategic determination to move for dismissal before answering.

A copy of the Court’s Memorandum and Order is available here.