Archive: September 2012

1
On Remand, Court Finds Rambus Committed Spoliation, Will Adjust Royalty Rate as Sanction
2
Federal Trade Commission Issues Final Changes to Agency Procedure
3
Facing Fines for Contempt, Twitter Produces Defendant’s Tweets
4
Court Finds Broad Requests for Social Media Content Fail to Uphold Rule 34(b)(1)(A)’s “Reasonable Particularity” Requirement, Denies Motion to Compel (in part)
5
Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails
6
Court Sees “No Principled Reason to Articulate Different Standards for the Discoverability of Communications through Email, Text Message, or Social Media Platforms.”

On Remand, Court Finds Rambus Committed Spoliation, Will Adjust Royalty Rate as Sanction

Hynix Semiconductor, Inc. v. Rambus, Inc., No. C-00-20905 RMW (N.D. Cal. Sept. 21, 2012)

As has been previously discussed on this blog (here), two federal courts analyzing nearly identical facts came to differing conclusions regarding whether a party to both litigations had committed spoliation by destroying documents pursuant to a newly adopted document retention policy.  In Hynix Semiconductor, Inc. v. Rambus, Inc. (N.D. Cal.), the court determined that Rambus did not spoliate documents and the case was resolved in favor of Rambus (i.e., its patents were found to be enforceable and Hynix was ordered to pay damages and future royalties).  In Micron Tech., Inc. v. Rambus, Inc. (D. Del.), the court found that Rambus did spoliate documents and, as a sanction, ordered that the at-issue patents were unenforceable as to Micron.  Both cases were appealed to the Federal Circuit, which clarified the proper standard for determining when the duty to preserve arose—the crux of the spoliation question and an issue about which the two lower courts disagreed.  The Federal Circuit court concluded that the district court in the Northern District of California had “applied too narrow a standard of forseeability” with regard to the question of when litigation was reasonably anticipated and remanded the case for further consideration.

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Federal Trade Commission Issues Final Changes to Agency Procedure

Yesterday, the Federal Trade Commission (“FTC”) announced that it has issued “final changes to agency procedure that will streamline the FTC’s investigatory process, make updates to keep pace with electronic evidence discovery, and provide more detail on how the agency evaluates allegations of misconduct by attorneys practicing before the Commission.”  Among the changes highlighted in the agency’s announcement is a new requirement that parties "meet and confer with FTC staff within 14 days (with certain exceptions) to resolve electronic discovery issues relating to subpoenas and civil investigative demands (CIDs), as well as any other issues” and a change which will relieve “parties of their obligations to preserve documents related to an FTC investigation after a year passes with no written communication from Commission staff.”  Other changes include, among other things, express references to electronically stored information throughout the rules and specific amendments addressing “the manner and form of production of ESI” (§2.7(j)) and inadvertent production and waiver (§2.11(d)).  The rules become effective on November 9, 2012.

To read the agency’s press release, which includes a link to the adopted amendments, click here.

Facing Fines for Contempt, Twitter Produces Defendant’s Tweets

People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct. 2012)

As was previously discussed on this blog (here, here, and here), Twitter, Inc. was recently ordered by New York Judge Matthew Sciarrino to produce both “content” and “non-content” information (including the text of Tweets) associated with the account of criminal defendant Malcolm Harris.  Mr. Harris and others were arrested during an “Occupy Wall Street” protest after marching onto the Brooklyn Bridge.  Thereafter, the District Attorney sent a subpoena to Twitter seeking Mr. Harris’ user information and Tweets in an apparent effort to disprove his claims that he and other protesters were led onto the roadway by the police.  Initially, Mr. Harris sought to quash the subpoena, but his motion was denied by the court for lack of standing—the court found that he had no proprietary interest in the information sought and that his claimed privacy interest was “understandable” but “without merit.”  Twitter then sought to quash the subpoena itself, but that motion was also denied.  Twitter had argued that Mr. Harris (like all Twitter users) had standing to quash the subpoena and that the court’s decision to deny that standing placed an undue burden on Twitter where it would be forced to either respond to all subpoenas or to vindicate its users’ rights by moving to quash.

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Court Finds Broad Requests for Social Media Content Fail to Uphold Rule 34(b)(1)(A)’s “Reasonable Particularity” Requirement, Denies Motion to Compel (in part)

Mailhoit v. Home Depot U.S.A., Inc., —F.R.D.—, 2012 WL 3939063 (C.D. Cal. Sept. 7, 2012)

In this case the court addressed Defendant’s request for broad discovery of the content of Plaintiff’s social networking sites for the purpose of “test[ing] Plaintiff’s claims about her emotional and mental state.”  Because three of the four categories of information sought by Defendant failed Rule 34(b)(1)(A)’s “reasonable particularity” requirement, the court largely denied Defendant’s motion to compel.

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Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails

Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 (S.D. Ohio Aug. 28, 2012)

In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”

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Court Sees “No Principled Reason to Articulate Different Standards for the Discoverability of Communications through Email, Text Message, or Social Media Platforms.”

Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)

Here, Defendant sought to compel production of discovery in several categories including “all social media content involving [Plaintiff] since July 1, 2008” that revealed or related to Plaintiff’s “‘emotion, feeling, or mental state,’ to ‘events that could be reasonably expected to produce a significant emotion, feeling, or mental state,’ or to allegations in [Plaintiff’s] complaint.”

Addressing the categories requested, the court indicated that it saw “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”

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