Archive: 2013

1
“Post-Public Comment” Version of The Sedona Conference® Commentary on Proportionality in Electronic Discovery Now Available
2
Availability of Clawback Order Thwarts Claim of Undue Burden Based on Cost to Review
3
Court Imposes Rule 16(f)(1) Sanctions against EEOC for Causing Unnecessary Burdens and Delays
4
Court Denies Motion for Protective Order or Cost-Shifting Related to Request to Utilize Sixty-Seven Search Terms
5
In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality
6
Court Awards Millions in Attorneys’ Fees for Document Review Conducted by Contract Attorneys and Use of Computer-Assisted Review
7
Court Considers the “Persnickety, but Persistent Question” of What Qualifies as “Content” Under the Stored Communications Act
8
Upcoming Events
9
Court Awards Sanctions for Discovery Violations, Including Wrongful Certification Pursuant to Rule 26(g)
10
502(d) Order Provides Right to Claw Back “No Matter What the Circumstances” that Resulted in Production

Availability of Clawback Order Thwarts Claim of Undue Burden Based on Cost to Review

In re Coventry Healthcare, Inc. ERISA Litig., No. AW 09-2661, 2013 WL 1187909 (D. Md. Mar. 21, 2013)

In this brief opinion, the court considered Defendants’ claim that the burden of producing the requested ESI outweighed its potential benefit to the class action plaintiffs and granted Plaintiffs’ motion to compel.  Specifically, Defendants claimed that Plaintiffs’ search terms, as applied to the ESI of selected custodians from the relevant discovery time frame, “hit” on approximately 200,000 documents and that it would cost approximately $388,000 “to process host and review the data for responsiveness and privilege.”  Defendants did not, however, suggest alternative measures to accommodate Plaintiffs’ discovery needs “other than negotiating more refined search terms.” 

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Court Imposes Rule 16(f)(1) Sanctions against EEOC for Causing Unnecessary Burdens and Delays

EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH (D. Colo. Feb. 27, 2013)

Previously in this case, the court ordered broad discovery of the claimants’ social media, text messages and email.  (See a summary of that opinion, here.)  In this opinion, the court imposed sanctions for the EEOC’s actions which resulted in unnecessary delays and expense for the defendant, including actions related to the facilitation of the court ordered discovery.  Notably, the sanctions were imposed pursuant to Rule 16(f), based on the Tenth Circuit’s “broader” interpretation of its application.

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Court Denies Motion for Protective Order or Cost-Shifting Related to Request to Utilize Sixty-Seven Search Terms

Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., No. 12-3427 (JLL), 2013 WL 541972 (D.N.J. Feb. 11, 2013)

In this case, the court denied Defendant’s motion for a protective order “regarding the sixty-seven (67) electronic word searches” demanded by the plaintiff.  It also denied Defendant’s request that the cost of running those searches be shifted to the plaintiff.

Plaintiff’s first Request for Production included a list of 67 proposed search terms to be run against Defendant’s ESI.  In response, Defendant sought a protective order or, alternatively, an order shifting the costs associated with the search, arguing it was “entitled” to a protective order because it had already produced 8000 pages of responsive documents (in hard copy) and because, in its view, the requested search terms were “quite broad and vague.”

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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

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Court Awards Millions in Attorneys’ Fees for Document Review Conducted by Contract Attorneys and Use of Computer-Assisted Review

Gabriel Techs., Corp. v. Qualcomm, Inc., No. 08CV1992 AJB (MDD), 2013 WL 410103 (S.D. Cal. Feb. 1, 2013)

Following entry of judgment in their favor in this patent infringement case, Defendants filed a motion seeking attorneys’ fees, including $391,928.91 for document review conducted by an outside provider of discovery services and $2,829,349.10 “attributable to computerassisted [sic], algorithm-driven document review” utilized to reduce the number of documents requiring manual review.  The court found these amounts reasonable and granted the motion in part.  Ultimately, the court awarded Defendants a total of $12,465,331.01.

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Court Considers the “Persnickety, but Persistent Question” of What Qualifies as “Content” Under the Stored Communications Act

Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., No. C 12-80242 EJD (PSG), 2013 WL 256771 (N.D. Cal. Jan. 23, 2013)

In this case, the court granted in part Defendant’s Motion to Quash upon finding that Google’s production of metadata related to communications containing certain search terms and production of subject lines would violate the Stored Communications Act (“SCA”).

Before the court in this case was “the persnickety, but persistent, question of exactly what qualifies as ‘content,’ whose disclosure by service providers is prohibited under the Stored Communications Act.”  Specifically, the court considered Defendant’s motion to quash a subpoena served by the plaintiff upon Google, Inc. to obtain discovery for use in a foreign proceeding.  The subpoena sought information related to “a number of electronic communications sent or received by certain Gmail accounts allegedly used by employees of Tibra,” including metadata related to messages containing certain search terms and the subject lines of those messages and others which met certain criteria (e.g. sent within a certain time frame, received by certain people).

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Upcoming Events

Compliance, Governance and Oversight Council, Summit 2013 – Stemming the Rising Tide of Data, Cost and Risk

March 14-15, 2013
The Resort at Pelican Hill
22701 South Pelican Hill Road
Newport Beach, CA

Join K&L Gates Partner, Martha J. Dawson and her fellow speakers for their discussion of “eDiscovery Law Today and Its Trajectory,” as part of a larger program entitled “Quantifying and Mitigating Information Risk.”

For more information about this program or others, or to register for this event, click here.

Washington Association of Public Records Officers (WAPRO) – Spring Conference

Tuesday April 30, 2013
Holiday Inn Downtown
3105 Pine Street
Everett WA 98201
8:45 AM – 4:30 PM

Join K&L Gates Partner, Julie Anne Halter and her fellow speakers for a discussion of “e-Discovery, Metadata & the PRA” (Public Records Act).

For more information visit the WAPRO website, here.

Court Awards Sanctions for Discovery Violations, Including Wrongful Certification Pursuant to Rule 26(g)

Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013)

In this case, the court imposed sanctions for discovery violations, including wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) addressing the appropriate format of production. Notably, the award was made jointly and severally against Plaintiff and counsel.

In response to each of Defendants’ Requests for Production, Plaintiff stated: “[Branhaven] will make the responsive documents available for inspection and copying at a mutually convenient time.”  The responses were signed by Plaintiff’s counsel pursuant to Rule 26(g), thus certifying that “the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.”  At the time of the response and certification, however, counsel had done little more than forward the requests to his client and had not yet been provided with any discovery responses.  Indeed, several of the primary sources for the ultimately produced data—two email servers and two laptops—had not yet been accessed, let alone searched.  Moreover, “counsel essentially admitted” that his response was intended to “buy time and technically comply with Rule 34” and also admitted that the “response was essentially meaningless in terms of identification and production of responsive documents.”

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502(d) Order Provides Right to Claw Back “No Matter What the Circumstances” that Resulted in Production

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Upon receipt of “dueling letters” concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered.  Indeed, the court identified the “one decretal paragraph” that stated that “Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ….“ and concluded that, “[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.”  (Emphasis added.)

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