Electronic Discovery Law

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

 

1
In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations
2
Noting Reliance Solely on Cost of Discovery, Court Rejects Proportionality Objection
3
Satellite Image Labeled with Automatically Generated “Tack” and GPS Coordinates Not Hearsay
4
Upcoming Event: Discovery of Social Media: Legal and Practical Considerations
5
Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment
6
Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format
7
In Patent Case, Court Indicates Importance of Damages Disclosures to Proportionality Calculation
8
Court Allows Deposition of Court-Appointed Forensic Expert, Cites Benefit to the Court, Orders Special Master to Participate in Questioning
9
Supreme Court Approves Proposed Amendments to Federal Rules of Civil Procedure, Submits Proposals to Congress for Approval
10
Court Imposes “Death Penalty Order” for Discovery Violations, Rejects Reliance on Retention Policy

In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations

Presenters: Desiree F. Moore, Daniel R. Miller, Ivan L. Ascott, & Bree Kelly

On July 16, 2015, a panel of attorneys from K&L Gates presented a webinar discussion addressing the discoverability and admissibility of social media content.  Topics discussed included:

  • the discoverability standards applied by courts with regard to social media content;
  • the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards;
  • the relevance of the federal Stored Communications Act to discovery of information on social media;
  • the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and
  • the considerations pertinent to admission of social media content as evidence.

To download the presentation slides or to view and listen to the webinar, click here.

Noting Reliance Solely on Cost of Discovery, Court Rejects Proportionality Objection

Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ, 2015 WL 3937410 (D. Kan. June 26, 2015)

In this case the court addressed Defendants’ motion to compel and Plaintiff’s objection to discovery based on proportionality. Concluding that Plaintiff failed to adequately establish the alleged burden of the requested discovery, the court granted the motion to compel.

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Upcoming Event: Discovery of Social Media: Legal and Practical Considerations

Please join us for an in-depth discussion of issues related to the discoverability and admissibility of social media content.

Thursday
July 16, 2015
12:00 – 1:30 p.m. EDT
Program will be 90 minutes, followed by time for Q&A

Our panel of K&L Gates lawyers will cover topics including: the discoverability standards applied by courts with regard to social media content; the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards; the relevance of the federal Stored Communications Act to discovery of information on social media; the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and the considerations pertinent to admission of social media content as evidence.

CLICK HERE to register.

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants “spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith” and recommended default judgment.  Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife “left it to her agent—her husband—to respond to Plaintiff’s document requests.”

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Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format

United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015)

In this case, the court addressed Plaintiffs’ demands that Defendants restore ESI contained on disaster recovery backup tapes for production in native format and produce active emails in native format with metadata.  Upon finding the backup tapes inaccessible, the court undertook the relevant cost-shifting analysis and determined that if Plaintiffs wanted production of the contents of the backup tapes in native format, they would be responsible for the cost.  The court also determined that TIFF images were a reasonable format for production and declined to compel production of active emails in native format or production of metadata.  Accordingly, “Plaintiffs’ requests for the production of Backup Databases, the Active Emails in Native, and the Metadata” were denied without prejudice.

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In Patent Case, Court Indicates Importance of Damages Disclosures to Proportionality Calculation

Corning Optical Commc’ns Wireless Ltd. v. Solid, Inc., No. 5:14-cv-03750-PSG, 2015 WL 1726749 (N.D. Cal. Apr. 14, 2015)

In this patent infringement case, the court addressed the “classic chicken-and-egg” problem of requiring initial disclosures regarding damages where “[t]o provide meaningful calculations, patentees need lots of information from accused infringers. But the expense of producing lots of information can only be justified by a meaningful calculation suggesting that substantial dollars are actually at stake.”  The court explained that despite significant discovery in the present case, including the exchange of “reams of data,” “neither side ha[d] any firm sense of whether this [was] a $1 case or a case worth billions.”  Moreover, the court explained, “the parties here are not unusual.  For years it has been the norm in patent cases to bludgeon first and value second.”  In granting Defendant’s motion to compel, the court acknowledged that the information sought was not only important to the defendant, but also to the court, stating: “Proportionality is part and parcel of just about every discovery dispute.”

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Court Allows Deposition of Court-Appointed Forensic Expert, Cites Benefit to the Court, Orders Special Master to Participate in Questioning

Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015)

In this opinion, the court addressed Defendant’s motion to take the deposition of the court-appointed, neutral, computer forensic expert who conducted a forensic analysis of Plaintiff’s electronic media and discovered a number of deletions. Plaintiff and Defendant differed regarding the meaning of the expert’s report and filed competing summaries. Accordingly, Defendant sought to conduct a deposition of the expert. The court granted the motion, noting the importance of the deposition in assisting the court to understand the issues before it and ordered a specific deposition protocol, including that the Special Master conduct a portion of the questioning.

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Supreme Court Approves Proposed Amendments to Federal Rules of Civil Procedure, Submits Proposals to Congress for Approval

Today, April 29, 2015, Chief Justice John G. Roberts submitted the proposed amendments to the Federal Rules of Civil Procedure which “have been adopted by the Supreme Court of the United States” to Congress for final approval.  Absent legislation to reject, modify or defer the rules, they will become effective December 1, 2015.

A copy of the Supreme Court’s submission to Congress is available here.

Court Imposes “Death Penalty Order” for Discovery Violations, Rejects Reliance on Retention Policy

Crews v. Avco Corp., No. 70756-6-I, 2015 WL 1541179 (Wash. Ct. App.  Apr. 6, 2015)

In this case, the trial court held Defendant in contempt and ultimately imposed a “death penalty order” for discovery violations, including the failure to produce relevant information.  Notably, the trial court rejected Defendant’s reliance on its document retention policy as an explanation for why the information was unavailable.  On appeal, the appellate court affirmed the imposition of sanctions but remanded for amendment of the final judgment to reflect any offsets authorized by statute.

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