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Electronic Discovery Law Blog

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

Frustrated Court Crafts “New and Simpler Approach to Discovery,” Identifies Search Terms to be Utilized by Plaintiff

Posted in CASE SUMMARIES

Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)

In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a “new and simpler approach” to discovery, including the identification of 13 search terms/phrases to be utilized when searching “ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .”  The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its “good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].”

Discovery in this case was contentious and resulted in at least one prior motion to compel, which the court granted in favor of the defendant.  At that time, the court warned the plaintiff “not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.”  Plaintiff subsequently produced documents on nine separate occasions. 

Following the prior motion to compel, Defendant also learned, for the first time, of a “five-step development process,” that it believed was highly relevant to its claims, and which caused it to believe that the plaintiff was withholding documents from production.  Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information. 

Taking up the motion, the court expressed its frustration with “the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.”  The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order “[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.”  “Instead,” the court continued, “the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . .” 

Reasoning that “[a] lawsuit is supposed to be a search for the truth, and the tools employed in that search are the rules of discovery,” that “[o]ur adversary system relies in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and their judicial business honestly” and noting that “Rule 37 helps enforce proper conduct,”  the court indicated it would “fashion a new and simpler approach to discovery that keeps the core of Optimum’s counterclaims in mind.”  The court went on to state that it had “noticed” “[i]n the various discovery documents attached to the motion papers” that “certain phrases appear that inevitably refer to or hint at [the at-issue technology]” and that the phrases “open the door to a more objective discovery process that leaves Armstrong no room for gamesmanship.”  Thus, after identifying the terms/phrases specifically, the court ordered:

For a period starting from January 1, 2004 through the present time, Armstrong must search ALL corporate documents, files, communications, and recordings for EACH of the above phrases. Armstrong will maintain a list of every server, computer, file room, or other place searched, and a list of all positive search results. For each positive result, Armstrong will procure a full copy of the document in question. Armstrong also will furnish a complete and sworn description of its document retention policies, if any, from January 1, 2004 through the present time. In the specific instance of [REDACTED] reports, if for any reason a product did not have a written report for a certain stage or did not go through all five stages then someone at Armstrong with appropriate knowledge or expertise will provide a sworn statement explaining why. When the search is complete, a representative of Armstrong and all of Armstrong’s counsel of record will file a sworn statement confirming that Armstrong made a good-faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to Optimum. All of this must occur on or before April 1, 2015, with absolutely no exceptions or extensions. Failure to comply will lead to sanctions under Rule 37(b)(2)(A).

The court also warned Defendant that it would not hesitate to impose the same approach on its discovery and ordered that counsel of record file, by a date certain, a sworn statement that all discovery requests had been fulfilled, or a motion for a protective order.

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

Software Licensing Restrictions No Shield Against Production

Posted in CASE SUMMARIES

Pero v. Norfolk S. Ry., Co., No. 3:14-CV-16-PLR-CCS, 2014 WL 6772619 (E.D. Tenn. Dec. 1, 2014)

In this case, the court declined to require the plaintiff to view the at-issue video at Defendant’s counsel’s office or to obtain a license for the proprietary viewing software and ordered the defendant to either produce a laptop with the video loaded on it for Plaintiff’s use in the litigation or to reimburse the plaintiff for the cost of a software license.

Plaintiff, a train conductor who was allegedly injured while attempting to remove a tree that was blocking the railroad tracks, sought to compel Defendant’s production of relevant video.  Defendant stated that it “merely own[ed] a license to use the software” necessary to view the video and that providing a copy to Plaintiff would exceed the license’s scope. Instead, Defendant offered to allow Plaintiff’s counsel to view the video at Defendant’s counsel’s office or suggested that Plaintiff pay $500 to obtain his own software license.  Plaintiff moved to compel the production of a copy of the video; Defendant moved for a protective order. Continue Reading

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