Tag Archives: K&L Gates

E-Discovery and the Law of Diminishing Returns.

14 Saturday Jan 2017

Posted by in Discovery, E-Discovery, Federal Rules of Discovery, Requests for Production

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Citing “Diminishing Returns,” Court Declines To Compel Additional Discovery, Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016), Electric Discovery Law, K&L Gates

http://bit.ly/2jbEnfn

When it comes to e-discovery, how much is too much? When do you or opposing counsel reach the point where the costs outweigh the value? The 2015 amendment to the Federal Rules of Civil Procedure did much to provide more guidance on e-discovery. Rule 26 is the focus of this post.

E-discovery normally means that you and your client have spent hours and lots of money on the case. If you cannot decide when enough is enough and neither the client nor the attorney are willing to stop the bleeding, the court may do it for you. Actually, the court has a duty to stop e-discovery when it becomes redundant and the cost outweighs the value of the return. -CCE

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Were Deleted Emails A Failure to Preserve?

15 Sunday Nov 2015

Posted by in Discovery, E-Discovery, Emails, Preservation

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Prejudice and to Avoid “Confusing the Issues,” by Electronic Discovery Law, K&L Gates Blog

http://tinyurl.com/ndmfrlx

West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)

In this case, the court granted Defendants’ motion to exclude ‘Plaintiff’s use of any argument or evidence of alleged spoliation’ where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s ‘old computer’ and to hire a third party to search for and recover relevant emails and documents from the same. . . .

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Spoiled Evidence On Both Sides – What Else Could Go Wrong?

24 Wednesday Jun 2015

Posted by in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES

http://tinyurl.com/o9p3kmn

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .

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Recent Opinions On E-Discovery Hot Topic – Technology-Assisted Review.

14 Saturday Mar 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality, Technology-Assisted Review

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Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues, published by K&L Gates

http://tinyurl.com/m7kll6l

Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

Taking up the topic of technology-assisted review (‘TAR’), Magistrate Judge Andrew Peck’s most recent opinion declares that ‘it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.’ Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of ‘how transparent and cooperative the parties need to be with respect to the seed or training set(s).’ And, while this opinion did not resolve that question (because the parties in the present case agreed to ‘a protocol that discloses all non-privileged documents in the control sets’), it does provide some notable commentary on the issue. . . .

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Defendants Recover E-Discovery Costs And How They Did It.

04 Wednesday Mar 2015

Posted by in Discovery, Document Review, E-Discovery, Legal Writing, Motions, Requests for Production

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Court Finds Defendants Are Entitled to Recover $55,649.98 In e-Discovery Costs, by K&L Gates

http://tinyurl.com/pdqnz3a

Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW, 2015 WL 638198 (D. Colo. Feb. 13, 2015)

Plaintiffs brought a ‘Motion to Review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1).’ Specifically, Plaintiffs sought review of the clerk’s determination “concerning the costs taxed amount of $55,649.98, which accounts for Defendants contracting with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information requested by Plaintiffs.” The court held that ‘[b]ecause Defendants’ costs related to the electronically stored information (‘ESI’) are expenses enumerated in 28 U.S.C. § 1920(4), and Plaintiffs were aware that Defendants would have to retain an outside consultant to retrieve and convert the ESI into a retrievable format, Plaintiffs’ Motion is denied.’ . . .

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Honey Pot of Federal Court E-Discovery Local Rules, Forms and Guidelines.

18 Sunday Jan 2015

Posted by in Bankruptcy Court Rules, Court Rules, Courts, Discovery, E-Discovery, E-Filing, Federal District Court Rules, Local Rules

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Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues, Electronic Discovery Law Blog, published by K&L Gates

http://tinyurl.com/p3d6srx

No doubt many of you have already have bookmarked this site. K&L Gates compiled this comprehensive list of local rules, forms and guidelines for U.S. District Courts and U.S. Bankruptcy Courts. At the bottom of their post, you will find a link that will take you directly to the U.S. Court’s website of all federal court rules. Thank you, K&L Gates. -CCE

Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues

Many United States District Courts now require compliance with special local rules, forms, or guidelines addressing the discovery of electronically stored information. Below is a collection of those local rules, forms and guidelines, with links to the relevant materials. Please note also that many individual judges and magistrate judges have created their own forms or have crafted their own preferred protocols for e-discovery. These are generally available on the website of the individual judge or magistrate judge and care should be taken to ensure you are aware of any such forms or guidelines in any court you may appear in.

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Shocking! A Court Frustrated by Parties’ E-Discovery Tactics.

24 Wednesday Dec 2014

Posted by in Breach, Contract Law, Discovery, E-Discovery, Litigation, Motion to Compel, Requests for Production

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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

http://tinyurl.com/kerbox6

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 . . . .’

To Decide Motion To Compel, Court Asks Whether Discovery Was “Fair.”

08 Saturday Nov 2014

Posted by in Discovery, E-Discovery, Intellectual Property, Motion to Compel, Patent Law, Requests for Production

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Considering Motion to Compel, Court Asks Whether Discovery Responses Have Been “Fair,” by K&L Gates

http://tinyurl.com/kkgomaa

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.

Bye, Bye Privilege! What Happens When You Take No Reasonable Steps To Prevent Disclosure.

18 Wednesday Jun 2014

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Document Review, E-Discovery, Federal Rules of Discovery, Requests for Production

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Think Fast—But Not Too Fast: Privilege Waived for Failure to Take Reasonable Steps to Prevent Disclosure, published by K&L Gates

http://tinyurl.com/khbymml

First Tech. Capital, Inc. v. JPMorgan Chase N.A., No. 5:12-CV-289-KSF-REW, 2013 WL 7800409 (E.D. Ky. Dec. 10, 2013)

In this case, the court found that privilege was waived where First Technology Capital, Inc. (‘FTC’*), through counsel, failed to take reasonable steps to prevent the inadvertent disclosure of privileged materials.  The court’s determination that counsel’s efforts were unreasonable was based, in part, on the speed of the alleged page-by-page review (each document received, on average, only 9.84 seconds of review) and FTC’s failure to produce a privilege log, among other things. . . .

Proposed Amendments to Federal Civil Procedure Rules Are Close to Approval.

08 Sunday Jun 2014

Posted by in Court Rules, Courts, Depositions, Discovery, E-Discovery, Federal District Court Rules, Federal Rules of Discovery, Interrogatories, Preservation, Requests for Admissions, Requests for Production

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Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure, by K&L Gates, posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES.

http://tinyurl.com/myroxzm

The amendments to the Federal Rules of Civil Procedure will be finalized sometime in September. -CCE

Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation.  The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule).  Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.

The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September.

Don’t Offer An E-Database If You Can’t Afford It.

14 Wednesday May 2014

Posted by in Appellate Law, Criminal Law, Databases, Discovery, Document Review, E-Discovery, Metadata, Preservation, Requests for Production

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Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants, Electronic Discovery Law, published by K&L Gates

http://tinyurl.com/led86em

In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the ‘Database’) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that the parties had previously negotiated, despite the depletion of funding for the Database which was accelerated by the Government’s voluntary actions. . . .

E-Discovery Federal Rule Amendments and More.

06 Thursday Mar 2014

Posted by in Bankruptcy Law, Case Law, Court Rules, Discovery, E-Discovery, Federal District Court Rules, Federal Law, Litigation, Mandatory Law, Metadata, Preservation, Primary Law, Regulations, Research, Sanctions, State Law, Statutes, Technology, The Sedona Conference, Trial Tips and Techniques

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Category Archives: FEDERAL RULES AMENDMENTS, by Electronic Discovery, K&L Gates

http://www.ediscoverylaw.com/articles/federal-rules-amendments/

 Notice and analysis of electronic discovery federal rule amendments. You can count on this website to be updated promptly and the information and analysis is accurate. Free subscription by RSS feed.

While you are there, it is worth your time to browse the variety of information published by K&L Gates. They are experts on e-discovery. You will find, among other things:

Just poke around. I do not think you will be disappointed. -CCE

Federal Court’s Application of the Stored Communications Act to Previously Opened Web-Based Emails.

08 Wednesday Jan 2014

Posted by in Discovery, E-Discovery, Emails, Evidence, Legal Technology, Preservation

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Stored Communications Act Applies to Previously Opened Web-based Emails, by K&L Gates

http://tinyurl.com/mcl4cgt

Cheng v. Romo, No. 11-10007-DJC, 2013 WL 6814691 (D. Mass. Dec. 20, 2013)

In this case, the court addressed the question of whether previously opened web-based emails were in ‘electronic storage’ as defined by the Stored Communications Act (SCA) and determined that they were.

Court Questions Party’s Unexplained Lack Of Cooperation In E- Discovery Production.

13 Friday Dec 2013

Posted by in Discovery, E-Discovery, Intellectual Property, Requests for Production, Trial Tips and Techniques

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Court Declines to Compel Identification of Seed Set, Encourages Cooperation, published by K&L Gates

http://tinyurl.com/leagmr6

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013).

Previously in this case, the court ruled that Biomet need not start again on its document production for which it utilized both keyword searching and predictive coding.  (See summary here.)  In this opinion, the court addressed the Steering Committee’s request that the discoverable documents used in Biomet’s seed set be identified and declined to compel such identification.  Despite this, the court noted Biomet’s ‘unexplained lack of cooperation’and urged Biomet to ‘re-think its refusal.’