A multi-part series reviewing news stories and noteworthy new cases from across 2019
In the first Part, we reviewed selected industry news stories and useful new publications from 2019. In the second Part, we reviewed selected social media and mobile devices cases from 2019. In the third Part, we reviewed selected ESI spoliation sanctions cases from 2019. In this final Part, we discuss selected proportionality cases from 2019 and a few other cases of note.
Throughout the year, XDD rounds up industry news stories, noteworthy cases, and more in monthly “Because You Need to Know” posts. In this series, we are reviewing some of the biggest developments and most interesting cases from across 2019. If you prefer to listen rather than to read, we also recently offered a free, one-hour educational webinar reviewing this material. A recording of that program is available here.
In this final Part, we discuss selected proportionality cases from 2019 and a few other cases of note, including cases discussing nonparties’ duty to preserve, inadvertent disclosure, patent discovery, and Google Maps authentication.
On December 1, 2015, Federal Rule of Civil Procedure 26(b)(1), which defines the scope of discovery, was revised to bring the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era. Over the four years since this amendment became effective, parties and courts have wrestled with how to effectively demonstrate proportionality or disproportionality and with the weight that should be accorded to individual privacy:
In any event, Plaintiff’s cell phone likely contains a tremendous volume of information, including possibly text messages, email messages, phone logs, and photographs that are not at all relevant to the claims or defenses in this case. Even many or most of those texts and messages between Plaintiff and his co-workers or former co-workers may have no relevance to the claims and defenses in this case . . . . Any relevant information concerning phone calls Plaintiff made to or received from co-workers and former co-workers could be more easily and less invasively obtained by asking Plaintiff about the calls during his deposition. [emphasis added]
The Magistrate Judge then quotes from the Advisory Committee Notes to Federal Rule of Civil Procedure 34(a):
Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy . . . . Courts should guard against undue intrusiveness resulting from inspecting or testing such systems. [emphasis added]
Based on these principles, the Magistrate Judge found that the Defendant’s discovery request was:
. . . overly broad, unduly burdensome and not proportional to the needs and issues of this case . . . . In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s). [emphasis added]
Apple’s interest in performance testing the forensic images outweighs Plaintiff’s privacy interest because Plaintiffs put the performance of the devices at the center of the lawsuit. The court further finds that Plaintiffs have not presented a feasible alternative that will satisfy Apple’s interest in the performance testing. [emphasis added]
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