eDiscovery Daily Blog

2019 eDiscovery Case Law Year in Review, Part 3

As we noted Tuesday and yesterday, eDiscovery Daily published 66 posts related to eDiscovery case decisions and activities over the past year, covering 56 unique cases!  Yesterday, we looked back at cases related to cooperation, form of production, privilege and confidentiality disputes, social media related disputes and a key case regarding biometric security.  Today, let’s take a look back at cases related to disputes regarding proportionality vs. relevancy vs. privacy.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will once again be discussing some of these cases – and what the legal profession can learn from those rulings – on our webcast on Wednesday, January 29thImportant eDiscovery Case Law Decisions of 2019 and Their Impact on 2020 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!


Since the 2015 Federal Rules changes and changes to Rule 26(b)(1) regarding the scope of discovery, we’re seeing more disputes regarding proportionality vs. relevancy vs. privacy than ever.  Once again this year, there are a lot of disputes related to proportionality vs. relevancy, relevancy vs. privacy and proportionality vs. privacy and they cover all sorts of disputes.  Here are fourteen cases related to proportionality vs. relevancy vs. privacy this past year:

Court Sides with Defendants in Subpoena of Police Department Records of Unsolved Murder: In Farmers New World Life Ins. Co. v. Atchison, Oklahoma District Judge Timothy D. DiGiusti granted the “Children” defendants’ Motion to Compel against non-party City of Oklahoma City Police Department (“OCPD”) to comply with the Children’s subpoena of records related to the murder of their father in a civil case with the insurance company.

Court Orders Defendants to Comply with Rule 26(a), Ditch the Boilerplate Objections: In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., Missouri District Judge Greg Kays ordered the discovery defendants to “supplement their initial disclosures so that they comply with Rule 26(a)” (within 14 days) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request”, as well as requiring each discovery defendant to “prepare a statement identifying the steps taken to preserve discoverable information”, among other things.

Court Orders Defendant to Respond to Interrogatories to Identify Number of Phone Calls it Made: In Franklin v. Ocwen Loan Serv., LLC, California District Judge Susan Illston ordered the defendant to respond to interrogatories, “with, at minimum, information regarding the total number of phone calls defendant made during the relevant period to California residents (including any account associated with a California address and any account containing a California area code)” and ordered the parties to stipulate to a method for extrapolating the total number of recorded phone calls defendant made to California residents during the relevant period.

Court Rejects Carpenter Argument for Third Party Subpoena of Google Subscriber Info: In U.S. v. Therrien, Vermont District Judge Christina Reiss denied the defendant’s motion to suppress evidence obtained via a subpoena of Google for subscriber information, rejecting the defendant’s argument that the United States Supreme Court decision in Carpenter v. US forecloses the government’s ability to obtain this type of data without a warrant.

Court Denies Plaintiff’s Motion to Compel Production of ESI Related to 34 Searches: In Lareau v. Nw. Med. Ctr., Vermont District Judge William K. Sessions III denied the plaintiff’s motion to compel production of ESI related to 34 search terms proposed by the plaintiff during meet and confer with the defendant, based on the extrapolation from a single search term that the plaintiff’s production request would require 170 hours of attorney and paralegal time and would produce little, if any, relevant information.

Discovery Can’t Be Stayed While Motion to Dismiss is Considered, Court Says: In Udeen v. Subaru of America, Inc., New Jersey Magistrate Judge Joel Schneider denied the defendants’ request that all discovery be stayed until their Motion to Dismiss is decided, but, with the proviso that only limited and focused discovery on core issues would be permitted.

Court Grants Motion to Compel Production of Telephone Records from Individual Plaintiff: In Siemers v. BNSF Railway Co., Nebraska Magistrate Judge Susan M. Bazis finding that the plaintiff’s telephone records are discoverable pursuant to Fed. R. Civ. P. 26, that they are not subject to a privilege claim just because plaintiff’s counsel’s telephone number may appear in the records and that privacy issues are minimal to non-existent (since the at-issue records do not contain the substance of communications), ordered the plaintiff to produce his telephone records within one week of the order.

Court Establishes Search Protocol to Address Plaintiff’s Motion to Compel: In Lawson v. Spirit Aerosystems, Inc., Kansas Magistrate Judge Angel D. Mitchell granted in part and denied in part the plaintiff’s motion to compel, ordering the defendant to produce documents related to two requests and, with regard to a third request, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”

Court Upholds Decision Not to Compel Plaintiff to Produce Unredacted Narrative of Events: In Kratz v. Scott Hotel Group, LLC, Indiana District Judge Tanya Walton Pratt, stating “[t]o invoke schoolyard vernacular: no do-overs”, denied the defendant’s objections to the Magistrate Judge’s decision not to compel the plaintiff to produce versions of an unredacted narrative of events associated with his hotel stays and interactions with hotel staff.

Plaintiff Requests His Entire PST File, Court Says No: In Russell v. Kiewit Corp., Kansas Magistrate Judge James P. O’Hara denied the plaintiff’s motion seeking to compel supplemental discovery responses by the seven defendants, including the request to receive his entire e-mail personal storage (PST) file, agreeing with the defendants’ contention that the request was overly broad and not proportional.

Despite Protective Order, Court Orders Plaintiff to Produce Source Code and Log File Printouts: In Opternative, Inc. v. Jand, Inc., New York Magistrate Judge Sarah Netburn granted in part and denied in part the defendant’s motion to compel the plaintiff to produce printouts of two files of source code, a printout of a log file, and a listing of directories and files.  Judge Netburn ordered the plaintiff to produce the source code and log file printouts requested, but not the file directory listing, choosing to reserve judgment on that for the time being.

Court Denies Plaintiff’s Request to Avoid Forensic Imaging of Devices in Apple Performance Case: In the case In Re: Apple Inc., California District Judge Edward J. Davila denied the plaintiffs’ motion to modify the Special Discovery Master order that authorized the forensic imaging of devices belonging to 10 of the more than 90 named plaintiffs in order to allow Apple’s outside experts to performance test the devices, finding that “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”.

Court Denies Petitioners’ Motion to Quash, But Also Finds Subpoena Is Not Within Scope of Discovery: In the case In re Verizon Wireless, Maryland Magistrate Judge Charles B. Day denied the petitioners’ Motions to Quash the respondents’ subpoena, finding that the petitioners did not have sufficient standing to have the subpoena quashed for phone numbers owned by Prince George’s County.  However, Judge Day also found that the subpoena was overbroad and was not within the scope of discovery and, as a result, granted the petitioners’ Motions for Protective Orders.

Court Denies Criminal Defendant’s Motion to Suppress Evidence Obtained via Warrantless Search: In United States v. Caputo, Oregon District Judge Karin J. Immergut denied the defendant’s motion to suppress emails and evidence derived from a warrantless search of Defendant’s workplace email account, finding “any expectation of privacy in Defendant’s work email was objectively unreasonable under the military’s computer-use policies in effect at his workplace.”

One more day to go!  What category will we cover tomorrow that had the most cases we covered this past year?  Stay tuned!

Want to take a look at cases we covered the previous eight years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

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