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Use clawback to avoid responsiveness review? Coventry re ERISA

clawback ediscovery



In re Coventry Healthcare ERISA LITIGATION 2013 WL 1187909 (D.Md.)

this is about a retirement savings plan

Plaintiffs allege:

1. failure to prudently manage the plan fail to monitor fiduciaries

2. failure to avoid conflicts of interest

3. co-fiduciary liability

requested timeframe is overbroad…and would impose an undue burden

outweighs any potential benefit

Rule 26(b)(2)(C)(iii) requires that the court limit discovery if it finds this but the party must: demonstrate the burden and provide alternatives. The only alternative offered was refined keywords.

it will cost $388,000 to process, host, and review the data

Court looked to Adair v. EQT Prod. Co. where the high cost of review created a burden. Solution in that case: clawback provision. ┬áCourt adopts this solution – clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. SHIFT the burden of review to plaintiff to inform the court whether the ESI produced was over-inclusive or under-inclusive. If production is too broad, then refine keywords

ed: this case and Adair are unique because they apply the 502 clawback standard to responsiveness, while apparently assigning a new burden to the receiving party

Adair v. EQT Prod. Co., 2012 WL 1965880 (W.D.Va. May 31, 2012)