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Level 2 Legal

"With Level 2 Legal as our eDiscovery partner, we know we can trust that they will do it right."

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Portion Control: Proportionality at Work in Hinostroza v. Denny’s Inc.

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At Level 2 Legal, our clients usually come to us with a trifecta of discovery and especially eDiscovery challenges. First, they are typically drowning in data that is potentially subject to discovery – with the volumes and types steadily increasing. Next, they have been served with discovery requests that are overbroad in scope and probative value. And third, time is rarely (if ever) on their side – the deadlines are real and often looming.

We make it our job to work through these issues and a host of other discovery challenges with our clients. Sometimes things are within our control, such as application of cutting-edge technological and human processes to reduce the volume and type of documents subject to further review and consideration. But other times the solution requires interfacing and negotiating with opponents, during which reliance on federal discovery and other rules can be helpful.

Proportionality, as embodied in Fed. R. Civ. P. 26(b)(1), is one such principle that is particularly helpful and persuasive. This principle is continuously gaining traction, as courts across the country apply the six factors that make up the proportionality analysis. One of the latest cases to do so is the single plaintiff slip and fall matter of Hinostroza v. Denny’s Inc., No. 2:17-cv-02561-RFB-NJK (D. Nev. June 29, 2018).

For a thorough recap of the facts of Hinostroza, see David Horrigan’s post on The Relativity Blog. Following Ms. Hinostroza’s fall and her subsequent lawsuit, Denny’s sought discovery of a range of digital and other evidence in her possession, custody, or control. After three failed meet and confer attempts, Denny’s filed its motion to compel.

In ruling on Denny’s motion, Judge Koppe analyzed five of the six proportionality factors under Rule 26(b)(1).

  • The importance of the issues at stake in the action
  • The amount in controversy (the one factor the court did not consider)
  • The parties’ relative access to relevant information
  • The parties’ resources
  • The importance of the discovery in resolving the issues
  • Whether the burden or expense of the proposed discovery outweighs its likely benefit

Applying the factors, the court sided with Denny’s in allowing discovery of Ms. Hinostroza’s medical and insurance records from accidents she sustained in 2012 and 2015, reasoning that such records “are relevant to the issue of whether the injuries existed at the time [of her fall] and whether the latest accident caused or aggravated the injuries.” The court also allowed Denny’s request for relevant portions of Ms. Hinostroza’s employment records.

But Judge Koppe issued a split decision on Denny’s request for a broad range of text messages, emails, and other communications, limiting the request to non-privileged communications relating to Ms. Hinostroza’s fall. Denny’s request for social media data was similarly limited to only one year of data, and further only to posts or other communications relating to Ms. Hinostroza’s emotions or feelings caused by her fall. And in the increasingly sought-after category of “wearable” device data, the court instructed Ms. Hinostroza to supplement her prior discovery responses to clarify whether she had conducted a reasonable search for any data generated by a Fitbit or similar device.

It used to be that corporate defendants in asymmetrical litigation – such as the single plaintiff lawsuit at issue here – bore all the expense of discovery, with burden arguments often falling on deaf ears. But the ease and ubiquity of text messages, emails, wearable device data, and social media data has leveled the playing field, with plaintiffs sometimes now in possession of more electronically stored information than corporate defendants. This fact of life in 2018 – together with the ongoing revisions to the discovery rules – is bringing both sides a little closer to realizing Rule 1’s goal of the “just, speedy, and inexpensive determination of every action and proceeding.”

Get in Touch with an eDiscovery Expert

Chris Schultz, eDiscovery Solutions Expert

Chris Schultz serves as executive vice president and general counsel of Level 2 Legal Solutions. In addition to serving as the chief legal officer, Chris helps coordinate all aspects of the company’s managed review and corporate compliance projects. He also leads engagement teams assisting clients with a full range of eDiscovery and litigation readiness projects. In addition, Chris is available to provide clients with expert testimony and special discovery master services. A dynamic speaker with more than five years of college-level teaching experience, Chris is a frequent presenter of continuing legal education and other seminars concerning eDiscovery.