Shark week, er, eDiscovery Case Week, continues!  In Bourell v. Ronscavage, No. 3:21-CV-01098 (MPS) (D. Conn. June 23, 2023), Connecticut Magistrate Judge Maria E. Garcia used the six proportionality factors of FRCP Rule 26(b)(1) to determine that the plaintiff must produce video journals depicting the plaintiff’s injuries, symptoms, and recovery, following the accident that was the subject of the lawsuit.

Case Background

In this case, an Order was entered addressing the parties’ disputes over Plaintiff’s privilege log, primary care records, and video recordings, following a discovery status conference. The Order directed the parties to hold a follow-up meet and confer to narrow and/or resolve their dispute regarding the production of Plaintiff’s videos, with direction to provide additional letter briefing if the matter remained unresolved by June 14, 2023. After a meet and confer was held on June 9, 2023, by Zoom, the parties were unable to reach an agreement on the scope of the production. So, the defendant filed a Motion to Compel Production seeking production of video journals produced by and in the custody of Plaintiff.

Judge’s Ruling

Judge Garcia evaluated each of the six proportionality factors in Rule 26(b)(1) to make her ruling, as follows:

“The importance of the issues at stake in the action. The claims in this case stem from an alleged traumatic brain injury sustained by Plaintiff; his physical and emotional wellbeing are central to the question of damages. The parties do not dispute that Plaintiff’s videos depicting his injuries, symptoms, and recovery since the accident are important and relevant. Indeed, Plaintiff has produced 331 video/audio/text files that he will presumably use to prove his case…Defendants state that Plaintiff ‘testified that he essentially cannot function in life … and is unable to physically and mentally sustain an intimate relationship.’…He also testified that since the accident he traveled to numerous countries, including Switzerland, England, Italy, France, Scotland and Israel, to attend a wedding, concert, where he biked, walked dogs, and went to petting zoos…Defendants seek to test Plaintiff’s testimony and seek access to all his videos. The Court finds that this factor weighs in favor of disclosure.”

“The amount in controversy. Defendants state that Plaintiff seeks $5,429,869.61 in damages ‘of which 95% are non-economic, as well as double or triple damages as allowed by law.’…Plaintiff did not dispute this figure in its filings or at the status conference held on June 6, 2023 when this issue was raised. The Court finds that this factor weighs in favor of disclosure.”

“The parties’ relative access to relevant information. Plaintiff represents that there are 2TB+ of data consisting of 23,715 videos from April 2019 (four months before the collision) to the end of May 2023…He states that it would be unduly burdensome for counsel to review the videos, create a log, and determine whether any video is privileged. He does not claim, however, that the videos are not reasonably accessible. Defendants represent that during a meet and confer they were informed that Plaintiff already paid a third-party to download and save the videos…Thus, the access to the information is not at issue. The Court finds that this factor favors production.”

“The parties’ resources. With regard to resources, Plaintiff has already incurred the expense of transferring the videos to a separate hard drive…Defendants point out that Plaintiff has two law firms representing him with plenty of resources, who are highly competent and capable of handling discovery in a large case…The Court finds that this factor weights in favor of disclosure.”

“The importance of the discovery in resolving the issues. As set forth above, the parties do not dispute the importance of these videos depicting Plaintiff’s injuries, symptoms, and recovery from the accident. The Court finds that this factor weighs in favor of disclosure.”

Regarding the final factor (Whether the burden or expense of the proposed discovery outweighs its likely burden), the plaintiff’s burden argument focused on the time to review the production not on the cost to transfer the video content. He estimated that if counsel took two minutes to review each video, it would take 790 hours to review all the videos. In turn, defendants argued there is no burden to produce the videos as “they can be posted to a cloud-based server.” Regarding the cost associated to review the videos, they argued that the “evaluation of this burden depends on facts that have never been established and are based on pure guess work.”

Judge Garcia stated: “Plaintiff made no showing to support his claim of burdensomeness until after Defendants sought court intervention… Moreover, Defendants state that at his deposition Plaintiff testified that he did not make the videos to communicate with counsel; ‘thus, review for privilege is unnecessary and an obstructionist tactic.’…Because the requested videos are relevant, and because Plaintiff has failed to demonstrate burden, his objection is overruled.”

Noting “the fact that such a video has been reviewed by counsel shall not constitute a waiver of privilege”, Judge Garcia stated as a conclusion to her analysis of the six proportionality factors: “To the extent that they exist, Plaintiff shall produce two weeks of video journals per month from the date of the accident to the present. Specifically, Plaintiff will produce responsive videos for the first fourteen days of each month. If Plaintiff choses to review the videos in advance of production and withholds any videos based on the attorney-client privilege and/or work product protection, he will amend the privilege log accordingly, and produce the amended privilege log with his supplemental production.”

So, what do you think? Are you surprised more courts don’t use the six proportionality factors to rule on proportionality disputes? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

BTW, I’m on my first real vacation in three years (seriously! – this post was pre-scheduled!) so I may be slow to respond to comments here and on social media. 🙂

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