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Electronic Discovery Law Blog

Legal issues, news, and best practices relating to the discovery of electronically stored information.

Court Declines to Preclude “Eyes On” Review for Privilege

Posted in CASE SUMMARIES

Good v. Am. Water Works Co., Inc., No. 2:14-01374, 2014 WL 5486827 (S.D. W. Va. Oct. 29, 2014)

In this case, the parties made an effort to “craft an agreement respecting the handling of attorney-client and work product information inadvertently disclosed,” but disagreed regarding the proper procedure for identifying privileged information.  Defendants sought to “’encourage the incorporation and employment of time-saving computer-assisted privilege review, while Plaintiffs propose[d] that the order limit privilege review to what a computer can accomplish, disallowing linear (aka ‘eyes on’) privilege review altogether.’”  The court agreed with the defendants and entered an order allowing both computer-assisted and linear review, but invited the plaintiffs to file a second motion should the defendants’ methodologies result in unacceptable delays. Continue Reading

The 2014 ABA Journal Blawg 100: Vote for Your Favorites Now!

Posted in NEWS & UPDATES

The ABA Journal’s Annual Blawg 100 list was released yesterday and we are pleased to report that the Electronic Discovery Law blog was nominated in the Legal Tech category!  The public is now invited to weigh in on the nominees by voting for their favorite in each category.  To vote, click on the “Vote for your Favorites” banner below, and register to cast your vote for your favorite blogs.  The polls close on December 19, 2014.

Considering Motion to Compel, Court Asks Whether Discovery Responses have been “Fair”

Posted in CASE SUMMARIES

Finjan, Inc. v. Blue Coat Sys., Inc., No. 5:13-cv-03999-BLF, 2014 WL 5321095 (N.D. Cal. Oct. 17, 2014)

In this patent infringement case, Defendant objected to “producing custodial email from archival systems when [the Plaintiff] is not able to do the same in return.”  Plaintiff filed a motion to compel.  In assessing the motion, the court recognized potential limitations on discovery, pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii).  The court indicated that, “[r]educed to its essence, Rule 26(b)(2)(iii) [sic] requires this court to decide: have Blue Coat’s discovery responses been fair?”  In response, the court concluded that the defendant’s responses had “largely been fair, but not entirely.”  Turning specifically to the question of custodial emails, the court reasoned:

Where Blue Coat has been less than fair is with respect to archival email for its eight custodians. Blue Coat may largely be in the right that it should not have to dig through legacy systems when Finjan is unable to the same for its custodians. But one party’s discovery shortcomings are rarely enough to justify another’s. And here, at least with respect to documents mentioning Finjan—the one specific category of documents Finjan could identify that it needed from archived email—Finjan’s request is reasonable.

A full copy of the court’s opinion is available here.

Back to Basics: Court Orders Compliance with Rule 34

Posted in CASE SUMMARIES

Venture Corp. Ltd. v. Barrett, No. 5:13-cv-03384-PSG, 2014 WL 5305575 (N.D. Cal. Oct. 16, 2014)

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

- Opening paragraph, Venture Corp. Ltd. v. Barrett Continue Reading

Second Circuit Vacates Conviction for Failure to Authenticate Printed Profile from “Russian equivalent of Facebook”

Posted in CASE SUMMARIES

United States v. Vayner, — F.3d —, 2014 WL 4942227 (2d Cir. Oct. 3, 2014)

In this case, the Second Circuit vacated the defendant’s conviction “on a single charge of transfer of a false identification document” upon concluding that the district court erred in admitting a printout of the defendant’s alleged profile on “the Russian equivalent of Facebook,” (“VK.com”) “because the government presented insufficient evidence that the page was what the government claimed it to be—that is, Zhyltsou’s profile page, as opposed to a profile page on the Internet that Zhyltsou did not create or control.” Continue Reading

Citing Ethical Implications, Court Denies Motion to Appoint Coordinating Discovery Attorney in Criminal Case

Posted in CASE SUMMARIES

United States v. Hernandez, No. 14 Cr. 499(KBF), 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014)

Citing ethical implications, the District Court in this criminal case denied nine defendants’ motion to “appoint a tenth attorney to act as a Coordinating Discovery Attorney (“CDA”) on behalf of all nine defendants.” The Court concluded that “[a] vendor with an arms-length contact is clearly preferable” but also indicated that if a CDA was sought, “a stipulation or legally binding document should be entered” which makes clear the responsibilities of the CDA and of defense counsel. Continue Reading

Court Approves Use of Predictive Coding Despite Objection to “Unproven Technology”

Posted in CASE SUMMARIES

Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, Nos. 2685-11, 8393-12 (T.C. Sept. 17, 2014)

In this case, the court approved petitioners’  (Dynamo Holdings Ltd. Partnership et. al.) use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite respondent’s  (Commissioner of Internal Revenue) objection that the technology was “unproven.” Continue Reading

Applying Proportionality, Court Denies Motion to Compel Additional Search for ESI, Reminds Parties of Other Discovery Tools

Posted in CASE SUMMARIES

United States v. Univ. Nebraska at Kearney, No. 4:11CV3209, 2014 WL 4215381 (D. Neb. Aug. 25, 2014)

In this housing discrimination case, the parties disagreed regarding the proper scope of discovery and plaintiff’s proposed search terms.  Plaintiff sought the production of ESI related to requests for accommodation of a disability in every context (e.g., housing, academics, employment, etc.) while defendants sought to limit production to the “housing” or “residential” contexts.  The court found that plaintiff’s request was overly broad on its face and that the additional costs required by the requested searching would “far outweigh” anything that could be gained.  Moreover, the court agreed with defendants that even with a clawback order, review of potentially responsive documents would be required to protect students’ privacy interests.  Finally, in response to claims that defendants’ proposed search would miss responsive ESI, the court reasoned that “[s]earching for ESI is only one discovery tool,” and suggested that “[s]tandard document production requests, interrogatories, and depositions should suffice – and with far less cost and delay.” Continue Reading

Another Milestone Passes: Judicial Conference Approves Federal Civil Rules Amendments

Posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES

As reported by the National Law Journal (subscription required), the Judicial Conference has approved proposed changes to the Federal Rules of Civil Procedure.  No revisions to the proposals were reported.  The proposals will now go before the United States Supreme Court for review and, if approved, will take effect on December 1, 2015, absent any action by Congress to revise or reject the amendments.

The rules to be affected by the pending amendments include rules 1, 4, 16, 26, 30, 31, 33 and 34 (collectively known as the “Duke Rules Package”). The proposed amendments also include an entirely rewritten Rule 37(e) addressing preservation and sanctions.

For more information regarding specific proposed changes (including the proposed text of the rules), read the Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, HERE.

Court Allows Plaintiff to “switch horses in midstream” and Use Predictive Coding to Review Documents Initially Screened with Search Terms

Posted in CASE SUMMARIES

Bridgestone Americas, Inc. v. Int. Bus. Machs. Corp., No. 3:13-1196 (M.D. Tenn. July 22, 2014)

In this case, the court approved plaintiff’s request to use predictive coding in reviewing over two million documents, despite defendant’s objections that the request was an “unwarranted change in the original case management order” and that it would be unfair to allow the use of predictive coding “after an initial screening has been done with search terms.” Continue Reading