Archive: 2012

1
Da Silva Moore Plaintiffs File Reply Brief In Support of Objections to Discovery Rulings
2
Third Circuit Addresses Taxable Costs: Vacates Award of the District Court, Remands with Instructions to Re-Tax Costs in Accordance with Opinion
3
District Court Judge to Have Last Word on Computer-Assisted Review, Grants Plaintiffs’ Motion to Allow Additional Briefing
4
Eastern District of Texas Adopts its own [Model] Order Regarding E-Discovery in Patent Cases
5
Court Imposes Sanctions for Failure to Conduct Reasonable Inquiry and Late Production
6
Magistrate Judge Peck Issues Written Opinion Addressing Computer-Assisted Review
7
Government’s “Recommendations for ESI Discovery in Federal Criminal Cases” Revealed
8
“If you’re gonna just read one blog . . . it should probably be the Electronic Discovery Law blog . . . .”
9
Predictive Coding Addressed in Detail at Hearing, Parties Ordered to Submit Draft Protocol
10
NY State Court adopts Zubulake Standard: Reasonable Anticipation of Litigation Triggers Duty to Preserve

Da Silva Moore Plaintiffs File Reply Brief In Support of Objections to Discovery Rulings

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y.)

As expected, on March 19, 2012, plaintiffs in this case filed their Reply in Support of Rule 72(a) Objection to Magistrate Judge Peck’s February 8, 2012 Discovery Rulings.  In it, plaintiffs summarize their arguments as follows:

Extrajudicial activities aside, what should matter is whether MSL’s Method will ensure that MSL fulfills its obligations under Rule 26 to produce reasonable discovery.  Here, the answer is a resounding no.  Judge Peck’s adoption of MSL’s Method was contrary to law and/or clearly erroneous for two main reasons.  First, Judge Peck adopted MSL’s Method on an insufficient record; Judge Peck failed to hold an evidentiary hearing or obtain expert testimony as to its reliability and accuracy.  Second, MSL’s Method fails to meet basic standards for reliability; the protocol risks failing to capture up to 65% of the documents material to Plaintiffs’ case.  Accordingly, Plaintiffs respectfully request that the Court reverse Judge Peck’s ESI rulings.

In support of their position, plaintiffs also filed declarations from their attorney, Siham Nurhussein, and their expert in this case, Paul J. Neale.  All that remains now is for District Court Judge Andrew Carter, Jr. to issue his ruling, which will be reported on this blog when it becomes available.

For a copy of Plaintiffs’ Reply, click here.
For a copy of the Declaration of Siham Nurhussein, click here.
For a copy of the Declaration of Paul J. Neale, click here.

Third Circuit Addresses Taxable Costs: Vacates Award of the District Court, Remands with Instructions to Re-Tax Costs in Accordance with Opinion

Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012)

On appeal, the Third Circuit vacated the District Court’s approval of taxable costs related to electronic discovery and remanded with instruction to re-tax in accordance with this opinion.  Specifically, the court concluded that the relevant vendors’ charges “would not qualify as fees for ‘exemplification’” and that “of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved ‘copying’” and were thus recoverable.

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District Court Judge to Have Last Word on Computer-Assisted Review, Grants Plaintiffs’ Motion to Allow Additional Briefing

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y.)

On March 13, 2012, approximately 2 ½ weeks after Magistrate Judge Andrew Peck issued his much-talked about opinion approving “computer-assisted review,”  District Court Judge Andrew L. Carter, Jr. has granted plaintiffs’ request to submit additional briefing on their objections to the ruling.

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Eastern District of Texas Adopts its own [Model] Order Regarding E-Discovery in Patent Cases

Signed by Chief District Judge Leonard Davis on February 27, 2012, amendments to the Local Rules in the Eastern District of Texas include a [Model] Order Regarding E-Discovery in Patent Cases similar to an order  promulgated by a subcommittee of the Advisory Council of the Federal Circuit late last year.  The new [Model] Order is different in several respects, however.  The treatment of email, for example, differs in several important ways, including that the presumptive limitation on the allowable number of custodians is raised from five to eight, that the presumptive limitation on the allowable number of search terms is raised from five to ten, and that the court may consider requests for additional or fewer custodians without limitation.  The [Model] Order in the Eastern District of Texas also includes instruction on the production of ESI, including, for example, requiring production in TIFF format and specifying that no party has an obligation to make its production text-searchable unless it already exists in that form or is being converted for use in the litigation, including for use by the producing party’s counsel.  The [Model] Order in the Eastern District also limits a party’s obligation to restore backup media absent a showing of good cause and likewise precludes the obligation to collect and preserve voicemails, PDAs, and mobile phones (deemed “not reasonably accessible”) absent the same showing. 

Although the rules are effective immediately, comments regarding the amendments will be accepted by the Clerk of Court until Friday, March 23, 2012.

A copy of the General Order Amending Local Rules is available here.

Court Imposes Sanctions for Failure to Conduct Reasonable Inquiry and Late Production

In re Delta/AirTran Baggage Fee Antitrust Litig., —F. Supp. 2d—, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012)

After repeated representations that all responsive documents had been produced, a defendant belatedly discovered and produced an additional 60,000 pages.  Upon plaintiffs’ motion for sanctions, the court found that the defendant “did not conduct a reasonable inquiry” to ensure production of all responsive documents and had run “afoul” of Rule 26(e).  Accordingly, the court ordered discovery re-opened and that the defendant pay plaintiffs’ reasonable expenses and attorneys’ fees caused by the defendant’s failure, including the cost of the necessary motions and the extended discovery period.

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Magistrate Judge Peck Issues Written Opinion Addressing Computer-Assisted Review

Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012)

Magistrate Judge Andrew Peck issued an opinion on Friday, February 24, 2012, approving of the use of computer-assisted review of electronically stored information (“ESI”) by the parties in this case.  The opinion, which discusses both the details of the underlying case and the topic of computer-assisted review more generally, addresses a myriad of issues including how computer-assisted review works (generally) and what benefits it may provide.  The court appears to be the first to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” 

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Government’s “Recommendations for ESI Discovery in Federal Criminal Cases” Revealed

This month, the Joint Electronic Technology Working Group (JETWG) revealed its “Recommendations for ESI Discovery in Federal Criminal Cases,” which are intended “to promote the efficient and cost-effective post-indictment production of electronically stored information (ESI) in discovery between the Government and defendants charged in federal criminal cases, and to reduce unnecessary conflict and litigation over ESI discovery by encouraging the parties to communicate about ESI discovery issues, by creating a predictable framework for ESI discovery, and by establishing methods for resolving ESI discovery disputes without the need for court intervention.”

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“If you’re gonna just read one blog . . . it should probably be the Electronic Discovery Law blog . . . .”

It was great to hear the Electronic Discovery Law blog receiving high praise in the most recent Digital Detectives podcast!  In particular, our thanks go out to Neil Squillante, publisher of LitigationWorld, who was the guest of Sharon D. Nelson and John W. Simek this month .  The podcast was called “The Best Resources for Staying Current in E-Discovery” and when the topic turned to blogs, Mr. Squillante had this to say:

If you’re gonna just read one blog because you don’t have time, it should probably be the Electronic Discovery Law blog published by K&L Gates, a law firm.  They cover the most important appellate opinions in the ediscovery space so it’s a good way to keep up with what’s going on, especially issues that scare lawyers like spoliation, sanctions, and so forth.

To listen to the podcast, click here.

Predictive Coding Addressed in Detail at Hearing, Parties Ordered to Submit Draft Protocol

Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (ALC) (S.D.N.Y. Feb. 8, 2012)

On February 8, 2012, Magistrate Judge Andrew Peck conducted a hearing addressing several discovery issues which included a lengthy discussion of an appropriate protocol for predictive coding and resulted in an order for the parties to submit their draft protocols by February 16th.  The hearing was attended by counsel and their respective ESI experts.  A written opinion is expected which may distill some of the more technical aspects of the discussion.  Nonetheless, for those with the time, the (rather lengthy) transcript of the hearing is fascinating, and certainly worth a read.

A copy of the transcript is available here.

If and when an opinion is issued in this matter, it will be available here as well.

NY State Court adopts Zubulake Standard: Reasonable Anticipation of Litigation Triggers Duty to Preserve

Voom Holdings LLC v. EchoStar Satellite LLC, —N.Y.S.2d—, 2012 WL 265833 (N.Y. App. Div. Jan. 31, 2012)

In this case, the appellate court held that the lower court “properly invoked the standard for preservation set forth in Zubulake v. UBS Warburg LLC”, which requires that a party place a litigation hold once it “reasonably anticipates litigation” and affirmed the lower court’s order imposing an adverse inference for defendant’s spoliation of ESI.

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