Archive: 2013

1
Court Orders Adverse Inference for Failure to Prevent Automatic Deletion
2
U.S. International Trade Commission Adopts e-Discovery Rules
3
Case Update: For Spoliation, Court Orders $250,000,000 “to be applied as a credit against Rambus’s [$349 million] judgment against SK hynix”
4
For Good Cause Shown, Plaintiffs No Longer Required to Utilize Predictive Coding
5
Upcoming Event: eDiscovery Project Management 2013 (organized by eDiscovery Intelligence)
6
Fourth Circuit Addresses Taxable Costs Related to ESI
7
Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding
8
Volume, Expense Insufficient to Show ESI is Inaccessible, “Rather, the cost or burden must be associated with some technological feature that inhibits accessibility.”
9
Court Imposes Adverse Inference for Failure to Preserve Facebook
10
Da Silva Moore: Second Circuit Denies Petition for Writ of Mandamus Compelling Recusal of Magistrate Judge Peck

Court Orders Adverse Inference for Failure to Prevent Automatic Deletion

Pillay v. Millard Refrigerated Servs., Inc., No. 09 C 5725, 2013 WL 2251727 (N.D. Ill. May 22, 2013)

In this case, the court granted Plaintiff’s motion for an adverse inference instruction where Defendant failed to prevent the automatic deletion of relevant data despite notice of impending litigation and receipt of a specific preservation notice, sent directly to Defendant’s general counsel.

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U.S. International Trade Commission Adopts e-Discovery Rules

The U.S. International Trade Commission has adopted “final rules related to its e-discovery practices.”  “The new rules will be effective 30 days after publication in the Federal Register and are applicable to investigations instituted 30 days after publication in the Federal Register”—a Federal Register notice was issued on May 15, 2013.

The newly adopted rules address issues including the discovery of inaccessible information and limitations to discovery similar to those found in Fed. R. Civ. P. 26(b)(2)(C).  The newly adopted rules also add new provisions addressing privileged information and work product, including requiring the production of privilege logs and providing procedures for addressing the inadvertent production of privileged materials.

Case Update: For Spoliation, Court Orders $250,000,000 “to be applied as a credit against Rambus’s [$349 million] judgment against SK hynix”

SK Hynix, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2013 WL 1915865 (N.D. Cal. May 8, 2013)

In this ongoing patent infringement action, a major question has been whether Rambus’s destruction of documents constituted spoliation and, if so, what sanctions should be imposed. Different courts considering the same facts (but involving different plaintiffs) came to different conclusions.  Upon its initial consideration of the question, the district court in the Northern District of California determined that “Rambus had not spoliated documents” and that there was “no factual basis for an unclean hands defense” as asserted by SK hynix.  (See summary here.)  A jury subsequently returned verdicts in favor of Rambus and the court therefore “entered final judgment of infringement with respect to ten Rambus patent claims” and awarded judgment of “$349,035,842 after a remittitur plus prejudgment interest, and required SK hynix to pay specified royalties to Rambus on an ongoing basis.”  A district court in the District of Delaware (in a case involving Plaintiff Micron Technology, Inc.) disagreed, however, and found that sanctions were warranted for Rambus’s spoliation of documents.  (See summary here.)  The court therefore declared the patents in suit unenforceable against the plaintiff in that case.

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For Good Cause Shown, Plaintiffs No Longer Required to Utilize Predictive Coding

EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL, 2013 WL 1960621 (Del. Ch. May 6, 2013)

Previously, the court ordered the parties to “retain a single discovery vendor to be used by both sides” and to “conduct document review with the assistance of predictive coding.”  (See summary, here.)  On May 6, the court entered a new order, stating that Defendants could retain their chosen vendor and utilize computer assisted review but that the parties would not be required to retain a single vendor to be used by both sides and that “Plaintiffs may conduct document review using traditional review methods.”

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Upcoming Event: eDiscovery Project Management 2013 (organized by eDiscovery Intelligence)

“Learn how to Bring Agility and Clarity to the Management of your eDiscovery Process”

May 21-22, 2013
Marriot City Center
Pittsburgh, PA

“The mastery of electronic discovery is a necessary component in the changing business of litigation.  The tools for the seamless management of e discovery workflow are imperative for success.  This is not a vendor-led discussion. Rather, it’s two full days of CLE accredited implementable strategy you won’t want to miss.”

You can expect to learn more about: Big data, Information Governance and eDiscovery; Technology Assisted Review; Corporate IT Policies, and The Cross-Border eDiscovery Conundrum.

Join K&L Gates’ Partner Thomas J. Smith and others for a discussion about “Making Your Process Faster, Easier, Safer and More Cost-Effective” and “hear proposals for increased agility in the management of your in-house procedures, making up-front process pay off in the long run.”

To learn more about this conference, or to register, click here.
 

Fourth Circuit Addresses Taxable Costs Related to ESI

Country Vintner of North Carolina, LLC v. E & J Gallo Winery, Inc., —F. 3d.—, 2013 WL 1789728 (4th Cir. Apr. 29, 2013)

In this case, the Fourth Circuit clarified “what expenses related to electronically stored information (“ESI”) are taxable under the federal taxation-of-costs statute as ‘[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case’” and affirmed the district court’s order “taxing only the costs of converting electronic files to non-editable formats, and transferring files onto CDs.”

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Citing Proportionality, Court Declines to Require Defendant to Redo Discovery Utilizing Only Predictive Coding

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391 (N.D. Ind. Apr. 18, 2013)

In this product liability case, Plaintiffs’ Steering Committee objected to Biomet’s reliance on keyword searching to initially reduce the volume of information it then subjected to predictive coding and sought to require Biomet to start again and to utilize only predictive coding, with plaintiffs’ input.  The court concluded that Biomet’s efforts complied with its discovery obligations under the civil rules.

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Volume, Expense Insufficient to Show ESI is Inaccessible, “Rather, the cost or burden must be associated with some technological feature that inhibits accessibility.”

W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, No. CIV. 11-2271 GAG, 2013 WL 1352426 (D.P.R. Apr. 3, 2013)

In this case the court addressed competing proposed protocols for the discovery of electronically stored information and declined to approve a provision that would require cost-shifting, among others.  Notably, the court rejected the argument that the at-issue ESI was inaccessible (thus justifying cost-shifting) because the responding party did not show “that access to [the data] is hindered by any unique technological hurdles.”

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Court Imposes Adverse Inference for Failure to Preserve Facebook

Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285 (D.N.J. Mar. 25, 2013)

In this personal injury action, the court imposed spoliation sanctions for Plaintiff’s failure to preserve his Facebook account.

Plaintiff alleged that as the result of a work-related accident he sustained numerous injuries that rendered him permanently disabled.  Defendants sought production of information related to Plaintiff’s social media accounts and online business activities such as eBay.  In response, Plaintiff provided signed authorizations for the release of information from certain sites, but did not include authorization for the release of records from Facebook.

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Da Silva Moore: Second Circuit Denies Petition for Writ of Mandamus Compelling Recusal of Magistrate Judge Peck

In what is possibly the final chapter to last year’s Da Silva Moore predictive coding saga, the Second Circuit has denied Plaintiffs’ petition for a writ of mandamus compelling the recusal of Magistrate Judge Andrew Peck.  For those unfamiliar with the issues in this case, copies of the underlying decisions from both Magistrate Judge Peck and District Court Judge Carter are available here and here.  While a copy of the Second Circuit’s denial is available below, the full text of the order states:

Petitioners, through counsel, petition this Court for a writ of mandamus compelling the recusal of Magistrate Judge Andrew J. Peck.  Upon due consideration, it is hereby ORDERED that the mandamus petition is DENIED because Petitioners have not “clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion” in denying their district court recusal motion, In re Basciano, 542 F. 3d 950, 956 (2d Cir. 2008) (internal quotation marks omitted) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312-13 (2d Cir. 1988)), or that the district court erred in overruling their objection to that decision.

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

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