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.
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.
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
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
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
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
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
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.
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
Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014)
This case illustrates a recurring problem in all civil discovery, especially in intellectual property cases. A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. Think Eddie Haskell singing the Beaver’s praises to June Cleaver, only moments after giving him the business in private. Having considered the arguments, the court GRANTS Nevro’s motion to quash.
Boston Scientific Corp., 2014 WL 3851157, at *1.
In this case, the court addressed plaintiff’s subpoena seeking the production of a complete forensic image of two laptops utilized by the defendant, a former employee of the plaintiff, during his employment with plaintiff’s competitor, who the defendant began working for soon after resigning his position with the plaintiff. Continue Reading