Cited Cases

The Texas Supreme Court issued a major e-discovery opinion earlier this month, using a discovery dispute between homeowners and their insurer State Farm Lloyds to provide broad guidance for Texas litigants and judges on how to resolve disagreements over the form of production of electronically stored information.

2011 WL 198117 (7th Cir. 2011) (Posner, J.)In part because of the Defendant’s refusal to cooperate, the Seventh Circuit Court of Appeals reversed the district court’s denial to compel discovery and ordered the matter returned "for consideration of discovery demands under Rule 26 and any other pertinent rules..." The case involved discovery in U.S. federal court for use in a foreign (German) court and, paraphrasing Judge Posner, pursuant to 28 U.S.C. Sec. 1782, a party to litigation in a foreign country can seek discovery related to that litigation in a federal district court and—at the court’s discretion—obtain as much discovery as it if it litigation had been brought in that court. Once a court determines that abuse of 1782 is nonexistent or at least unlikely (the judicial screen), discovery proceeds as governed by the Federal Rules of Civil Procedure. In analyzing the matter, the Court of Appeals determined that the district court had committed two errors: concluding that the Plaintiff was seeking to circumvent German law and flatly turning down the Plaintiff’s discovery request on the ground that compliance would be unduly burdensome. Regarding the first error, Judge Posner noted that nothing suggested the German court would not admit at least probative evidence obtained via US discovery. Turning to the second error, the Court of Appeals criticized the district court for refusing any and all discovery by stating, "If it’s asking for too much, the district court can and should cut down its request, but not to nothing, as it did. That was unreasonable, and therefore reversible." Adding fuel to this flame was the Defendant’s "stonewalling" or refusal to cooperate by not meeting with the Plaintiff to negotiate scope of discovery and by not presenting any evidence of burdens which the granting of the discovery request would have imposed. It should also be noted that this opinion referenced the Seventh Circuit Electronic Discovery Pilot Program as a proponent of cooperation in complex litigation.

2011 WL 2038714 (N.D.Ill. May 24, 2011) (Cox, M.J.)The Plaintiff sought to shift the entire burden of searching after a previously unproduced email was discovered by its expert on the Defendants' computers. While the Court found that the "Defendants failed to produce a clearly relevant and accessible document" it did not find that this failure was deliberately in non- compliance with Rule 26 or prejudicial to the Plaintiff's case. The Court ultimately decided to shift half of the cost of electronic discovery search so as not "to allow Defendants to walk away scot free from such an obvious discovery violation..." One argument which was put forth by the Defendants and rejected by the Court was that Defendants' failure to produce the email was the Plaintiff's fault because it did not identify the sought-after discovery's parameters as Principle 2.01 of the Seventh Circuit Electronic Discovery Pilot Program now requires.

2010 WL 1489996 (N.D.Ill. Apr. 13, 2010) (Nolan, M.J.)The Plaintiffs’ motion to compel production of documents was denied in part and granted in part. As it related to documents previously produced to the SEC, the Court was not persuaded by the Plaintiffs’ argument that a lack of production burden meant that it was time for a discovery free-for-all, and instead noted that “[t]he district court carved out no exception for merits discovery that may be produced with minimal burden.” With regard to the loss causation documents sought by the Plaintiffs, however, the Court found they were entitled to this information regardless of the acknowledged burden of conducting “a fairly extensive search” since loss causation was intended as a primary issue for purposes of class certification.

2010 WL (N.D. Ill. November 17, 2010) (Nolan, M.J.) While the court denied the Defendant’s motion to stay all discovery, it did order a phased approach to discovery limiting the initial phase to the named parties and postponing nonparty discovery until “the parties have exhausted seeking the requested information from one another.” The court also ordered the parties to meet and confer in person to prepare their discovery schedule and “to actively engage in cooperative discussions to facilitate a logical discovery flow.” In addition, the court gave both parties e-discovery homework: they were expected to be familiar with both the Seventh Circuit’s Electronic Discovery Pilot Program’s Principles as well as the Sedona Conference’s Cooperation Proclamation.