E-Discovery Alert

(E. D. MO February 10, 2010)

Courts use one of two different analyses for determining whether expedited discovery is appropriate.

Plaintiff brought suit against a former employee for tortious interference. They alleged that she had maintained personal client files and stolen clients when she moved to a new bank. They also alleged that she maintained files on her personal computer and cell phone. As a result , Plaintiff moved for expedited discovery of the cell phone and computer. The court noted that ordinarily a party cannot seek discovery before the parties have met and conferred as required by Rule 26(f). However, the court also noted that there are some exceptions to the rule. In its analysis the court said, "Courts use one of two standards to determine whether a party is entitled to conduct expedited discovery. Some courts apply a good cause or reasonableness standard while others analyze a set of factors similar to those for obtaining a preliminary injunction....Under the good cause standard, the party requesting expedited discovery must show that the need for expedited discovery, in consideration of administration of justice, outweighs prejudice to the responding party." The court went on to list the factors to be considered under the second kind of analysis (the preliminary injunction-style analysis)" 1) irreparable injury 2) some probability of success on the merits, 3) some connection between the expedited discovery and the avoidance of the irreparable injury, and 4) some evidence that the injury will result without expedited discovery looms greater than the that the defendant will suffer if the expedited relief is granted..." The court found that the Plaintiff failed to meet its buren under either standard.

USBankNational ASSC021010.pdf

Badger v. Stryden Corporation

2010 WL 392352 (January 26, 2010)

Good cause for expedited discovery is usually found in cases involving requests for injunctive relief, challenges to personal jurisdiction, class actions, and claims of infringement and unfair competition. Good cause would also be found if deponent is going to leave the country.

Pro se Plaintiff sought to take an expedited deposition of one of Defendant's former employees before the parties had met and conferred as required by Rule 26(f). After noting, "While the Court retains much discretion in granting leave for an early deposition, Rule 26(d) implicitly requires a baseline justification" The court went on to say, "Good cause is usually found in cases involving requests for injunctive relief, challenges to personal jurisdiction, class actions, and claims of infringement and unfair competition." The court concluded by finding that the Plaintiff failed to offer a reason why the early deposition was needed.

Badger012610.pdf

Interserve, Inc v.Fusion Garage PTE, Ltd

2010 WL 143665 (N. D. CA Jan. 7, 2010)

Defendant's conduct justified expedited discovery.

Parties were collaborating on a tablet style lap top computer. Just weeks before the release of the product, Fusion abruptly announced that they were pulling out of the project. And then just a few weeks later they announced the release of their own tablet style computer. Interserve brought suit against Fusion. Also because of Fusion's abrupt behavior and poor timing of their conduct, Interserve requested expedited discovery. Noting Fusion's less than stellar conduct, the court found good cause to grant the motion in part.

interserve010710.pdf