04 Sunday Nov 2018
Posted in Discovery, Motion to Compel
≈ Comments Off on Be A Discovery Ace.
6 Keys to Acing Discovery, by Katherine A. Hopkins, ABA Journal
Best advice in this well-written post? Know the case law in your Motion to Compel, know the court rules and follow them to the letter, and make it easy for the judge. -CCE
04 Sunday Oct 2015
Posted in Admissibility, Discovery, E-Discovery, Emails, Emails, Evidence, Federal Rules of Discovery, Forensic Evidence, Gap-Period Emails, Legal Technology, Motion to Compel, Relevance, Requests for Production
≈ Comments Off on Defendant Ordered by Court to Produce Gap-Period Emails on Backup Tapes.
Defendant Compelled to Restore and Produce Emails from Backup Tapes: eDiscovery Case Law, by Doug Austin, eDiscoveryDaily Blog
In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Aug. 25, 2015), Nevada Magistrate Judge Valerie P. Cooke concluded that emails contained on backup tapes held by the defendants was not reasonably inaccessible due to undue cost and, even if the emails were reasonably inaccessible due to undue burden or undue cost, ‘good cause supports their discoverability.’ . . .
24 Wednesday Dec 2014
Posted in Breach, Contract Law, Discovery, E-Discovery, Litigation, Motion to Compel, Requests for Production
≈ Comments Off on Shocking! A Court Frustrated by Parties’ E-Discovery Tactics.
E=Frustrated Court Crafts ‘New and Simpler Approach to Discovery,’ Identifies Search Terms to be Utilized by Plaintiff, posted in Case Summaries by K&L Gates
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014)
In this breach of contract case, the court granted in part Defendant’s motion to compel and, in light of Plaintiff’s piecemeal production (which the court had earlier cautioned against) and other discovery failures, fashioned a ‘new and simpler approach’ to discovery, including the identification of 13 search terms/phrases to be utilized when searching ‘ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .’ The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its ‘good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].’
Discovery in this case was contentious and resulted in at least one prior motion to compel, which the court granted in favor of the defendant. At that time, the court warned the plaintiff ‘not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.’ Plaintiff subsequently produced documents on nine separate occasions.
Following the prior motion to compel, Defendant also learned, for the first time, of a ‘five-step development process,’ that it believed was highly relevant to its claims, and which caused it to believe that the plaintiff was withholding documents from production. Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information.
Taking up the motion, the court expressed its frustration with ‘the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.’ The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order ‘[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.’ ‘Instead,’ the court continued, ‘the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . . .’
08 Saturday Nov 2014
Posted in Discovery, E-Discovery, Intellectual Property, Motion to Compel, Patent Law, Requests for Production
≈ Comments Off on To Decide Motion To Compel, Court Asks Whether Discovery Was “Fair.”
Considering Motion to Compel, Court Asks Whether Discovery Responses Have Been “Fair,” by K&L Gates
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.
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