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Electronic Discovery Law Blog

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

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

Posted in EVENTS

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

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. Continue Reading

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.” Continue Reading

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.  Continue Reading

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.” Continue Reading

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.  Continue Reading

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

Posted in NEWS & UPDATES

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. Continue Reading

What the judges think: e-discovery practices and trends

Posted in NEWS & UPDATES

by Daniel Miller and Tina Miller

This article was originally published in the Lawyers Journal, The Journal of the Allegheny County Bar Association, April 3, 2015.

A recent survey of leading federal jurists indicates that many attorneys need to improve their knowledge and practices regarding e-discovery.

The “Federal Judges Survey on e-discovery Best Practices and Trends,” commissioned by the e-discovery software firm Exterro, reflects responses from 22 federal district and magistrate judges, including the Western District of Pennsylvania’s Chief Judge Joy Flowers Conti, Judge Nora Barry Fischer and Magistrate Judge Lisa Pupo Lenihan.

The judges were asked 15 multiple-choice questions covering a number of e-discovery topics. Despite the numerous and varied e-discovery seminars and training sessions currently available to practitioners, the survey results indicate that many attorneys still lack e-discovery competency. In particular, the judges complained about two main problems – a lack of knowledge about their clients’ e-discovery environment and a lack of cooperation between opposing parties and attorneys.

To read the full article, click here. Reprinted with permission from the Lawyers Journal.

To access the Federal Judges Survey on e-Discovery Best Practices and Trends, click here.

No Sanctions for Discovery Failures Resulting from Court-Ordered Seizure of Defendants’ Books and Records in a Separate Case


Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

Plaintiffs in this collective action sought spoliation sanctions for Defendants’ failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc.  Defendants objected to the motion on the grounds that “all of their books, records and computers were seized” pursuant to the court’s order in a different case and that there was no opportunity to make any copies or back ups.  Accordingly, the court reasoned that Defendants had not destroyed their records and found that “[u]nder the specific circumstances of this case … defendants did not have an obligation to copy their books and records before complying with the court order.”  The court also reasoned that even if Defendants did have an obligation to preserve, there was no evidence of Defendants’ requisite culpable state of mind.  Plaintiffs’ motion for sanctions was denied. Continue Reading