eDiscovery Daily Blog

Ruling on ESI Discovery Dispute Delayed as Court Requests Specific Information – eDiscovery Case Law


In Worley v. Avanquest North America Inc., No. C 12-04391 WHO (LB), 2013 U.S. Dist. (N.D. Cal. Dec. 13, 2013), a putative class action involving PC security software, California Magistrate Judge Laurel Beeler required the defendant to produce further information related to discovery disputes before a ruling would be issued.

Various discovery disputes arose in this case after the parties failed to agree on a discovery period. The applicable statute of limitations for this lawsuit was five years, and the defendant offered to preserve as evidence Electronically Stored Information (ESI) created during that five-year period. However, the plaintiffs requested an additional ten years added to the discovery period, as this would preserve “all relevant and discoverable information from the time the original versions of the software were developed to the present.”

According to the legal standard set by Rule 26, subsection (b)(1), parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense…” and relevant information “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Therefore, Judge Beeler sided with the plaintiffs regarding an extended discovery period, stating that relevant information “such as documents relating to the software’s design and purpose, could have pre-dated the statutory period.”

However, the defendant stated that adding ten years to the discovery period would result in an unduly burdensome obligation for preservation, and would be disproportionate to the litigation. This is also addressed in subsection (b)(2)(C) under Rule 26, which states that “the court must limit the frequency or extent of discovery otherwise allowed by these rules…” if it is determined that the discovery would be “unreasonably cumulative or duplicative,” or that “the burden or expense of the proposed discovery outweighs its likely benefit” to the case.

Judge Beeler noted that the argument could not be addressed without further information, specifically that the parties had identified neither potential custodians, nor the amount of information the defendant actually had in its possession, since the defendant’s company acquired the software at issue in 2005. These details would be required in order for the defendant’s technical expert “to specify the burdens associated with preserving relevant information (particularly of electronically-stored information).”

Therefore, the defendant was ordered to identify custodians who would be likely to hold relevant information with regard to the plaintiff’s discovery requests, and further to “consult a person with expertise (such as an IT employee) and specify any undue burden associated with preservation, and produce non-burdensome, relevant information” before a ruling would be given. If the technical expert identified any issues that would make production of documents unduly burdensome, both parties were to “comply with the court’s discovery procedures and submit a joint discovery letter that provides details about the problems and puts their dispute in context.” Meanwhile, Judge Beeler ordered the defendant to produce the agreed documents covered by the five-year statute of limitations, noting that further “discovery can be iterative.”

The final discovery dispute concerned the defendant’s request for the plaintiffs to produce mirror image copies of hard drives belonging to the plaintiffs and their experts, in order to test the software at issue. The plaintiffs argued against this, as the hard drives contained both personal and privileged information, including financial data, family photos, and private communications. They instead proposed allowing the defendant to choose a forensic expert, who would image the hard drives and provide the defendant with specifically requested data, including “recreate[d] computing environments.”

Judge Beeler deemed the proposal “not workable,” and permitted the imaging of the drives with the allowance that the plaintiffs could use a protective order to protect any private information, and would be able to review and remove any privileged information prior to remanding the images to the defendant.

So, what do you think? Should discovery periods be limited to the statute of limitations applicable to a given case? Are protective orders sufficient to protect private information when personal-use computers are involved in litigation? Please share any comments you might have or if you’d like to know more about a particular topic.

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