Archive: August 2016

1
Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied
2
Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied
3
A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)
4
Reliance on Caselaw Analyzing Prior Version of Rule 26 “Inexplicable” and “Inexcusable,” Sanctions Imposed

Statements of Information Withheld Comply with Amended Rule 34, Motion to Compel Denied

Rowan v. Sunflower Elec. Power Corp., No. 15-cv-9227-JWL-TJJ, 2016 WL 3743102 (D. Kan. July 13, 2016)

In this case, the court addressed, among other things, the sufficiency of Defendant’s objections to Plaintiff’s Requests for Production and in particular its compliance with the new requirements of amended Fed. R. Civ. P. 34, effective as of December 1, 2015. Upon review of the objections and Defendant’s statements of information withheld (as expressed by Defendant’s identification of its search parameters), the court concluded that Defendant’s responses were sufficient and counseled Plaintiff to make additional inquiries in future discovery to the extent he desired additional information.

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Use of Predictive Coding was “Reasonable Inquiry,” Motion to Compel Additional Discovery Denied

Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016)

In September 2014, the court approved Petitioners’ use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite Respondent’s objection that the technology was “unproven.” (Read a summary of that opinion here.)  At that time, the court indicated that Respondent could move to compel additional discovery in the event he believed that Petitioners’ response was insufficient.   Accordingly, after Petitioners denied Respondent’s request for production of additional documents containing certain specified search hits, Respondent moved to compel.  Concluding that Petitioners’ reliance on predictive coding satisfied the requirement for a “reasonable inquiry,” the court denied the motion.

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A Responding Party Cannot be Forced to Use Technology Assisted Review (Predictive Coding)

Hyles v. New York City, 10 Civ. 3119 (AT)(AJP) (S.D.N.Y. Aug. 1, 2016)

In this case, the court addressed the question of whether the City could be “forced” to use technology assisted review (predictive coding) to identify discoverable information when the City itself preferred to use keyword searching. “The short answer [was] a decisive ‘NO.’”

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Reliance on Caselaw Analyzing Prior Version of Rule 26 “Inexplicable” and “Inexcusable,” Sanctions Imposed

Fulton v. Livingston Fin., LLC, No. C15-0574JLR, 2016 WL 3976558 (W.D. Wash. July 25, 2016)

In this opinion, the court imposed sanctions for counsel’s misrepresentations of law and fact, including his citation to caselaw analyzing outdated standards under Fed. R. Civ. P. 26(b)(1), which was substantially affected by the December 2015 amendments. Calling counsel’s reliance on caselaw applying outdated standards “inexplicable” and “inexcusable” where the “December 1, 2015 amendments to Federal Rule of Civil Procedure 26(b)(1) ‘dramatically changed’ what information is discoverable,” the court ultimately imposed monetary sanctions (payment of Plaintiff’s fees and costs for defending the at-issue motion) and ordered counsel to supply “senior members” of his firm with the “offending brief” with the explanation that “the court is entering sanctions . . . for quoting provisions of the civil rules that are badly out of date, and also making direct misrepresentations to the court.”  Declining to also require the attorney to report the sanction on future pro hac vice applications, the court did order that if a federal court threatened or imposed sanctions on the attorney at any time in the next five years, the attorney must “immediately disclose to that court the sanctions imposed by this court by providing that court with a copy of this order and the offending briefing.”

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