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Case Law

Home Depot’s “Extremely Broad” Request for Social Media Posts Denied – eDiscovery Case Law
 

In Mailhoit v. Home Depot, CV 11 03892 DOC (SSx) (C.D. Cal.; Sept. 7, 2012), Magistrate Judge Suzanne Segal ruled that the three out of four of the defendant’s discovery requests failed Federal Rule 34(b)(1)(A)’s “reasonable particularity” requirement, were, therefore, not reasonably calculated to lead to the discovery of admissible evidence and were denied.

Case Background

The plaintiff had been a manager of the defendant's store in Burbank, California, and filed a suit against her employer after being fired, charging unlawful discrimination based on gender, as well as failure to accommodate her known physical disability.  The plaintiff testified at her deposition that she suffers from post traumatic stress disorder, depression and isolation, and has cut herself off from communication with friends because of Defendant’s alleged wrongdoing.  The defendant argued “that it is entitled to Plaintiff’s communications posted on social networking sites (“SNS”) such as Facebook and LinkedIn to test Plaintiff’s claims about her mental and emotional state.”

Defendant’s Motion to Compel

The defendant filed a Motion to Compel Further Responses to Defendant’s Request for Production of Documents, which included a request for (among other things):

“Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005(the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state”.

The defendant also requested “[t]hird-party communications to Plaintiff that place her own communications in context”, “[a]ll social networking communications between Plaintiff and any current or former Home Depot employees” and any pictures posted to the plaintiff’s profile or otherwise linked via tagging.

Judge Rules against Defendant in Three of Four Categories

Judge Segal noted that “while a party may conduct discovery concerning another party’s emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.  A court can limit discovery if it determines, among other things, that the discovery is…unreasonably cumulative or duplicative”.  Since Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity”, Judge Segal ruled that “three of the four categories of SNS communications sought by Defendant fail Rule 34(b)(1)(A)’s ‘reasonable particularity’ requirement”, only granting the defendant’s request for social networking communications between Plaintiff and any current or former Home Depot employees.

So, what do you think?  Should the defendant’s requests have been denied, or were they “unreasonably cumulative”?  Please share any comments you might have or if you’d like to know more about a particular topic.

Thanks to the Ride the Lightning blog for the tip on this case!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiffs Should Pay for Extensive Discovery Prior to Class Certification – eDiscovery Case Law
 

Have you ever joined a health club, then later tried to cancel your membership?  Did the health club make it easy to do so?  If not, then this case is for you.

In Boeynaems v. LA Fitness International, LLC, No. 10-2326, 2012 U.S. Dist. (E.D. Pa. Aug. 16, 2012), Pennsylvania District Judge Michael Baylson held that “where (1) class certification is pending and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very extensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek . . . . Where the burden of discovery expense is almost entirely on the defendant, principally because the plaintiffs seek class certification, then the plaintiffs should share the costs.”

This case emerged from two separate claims filed by plaintiffs who claimed they “encountered deception and breaches concerning their desire to terminate their membership” with the national gym chain LA Fitness. The two cases were consolidated, and the plaintiffs were seeking class certification so that other plaintiffs could join the suit.

After recounting the discovery history between the parties, Judge Baylson noted that this case arose because of an unresolved dispute, including who should bear the cost of continued discovery. To produce ESI requested by the plaintiffs, LA Fitness approximated it would cost the company hundreds of thousands of additional dollars. LA Fitness had already incurred expenses for discovery tasks previously undertaken, including the review of thousands of e-mails, review of “(1) over 500,000 Member Notes from five states for 30 months looking for certain terms, (2) over 1,000 boxes of cancellation requests, of which Plaintiffs reviewed only 70 boxes, (3) over 19,000 pages of documents, and (4) an electronic search of over 32,000 e-mails, maintained by five custodians.” Moreover, LA Fitness asserted that its review of “a sampling of these Member Notes has exhibited only an extremely small proportion with any evidence probative of Plaintiffs’ claims.”

Judge Baylson pointed out that as a result of the extensive review already undertaken by LA Fitness, the plaintiffs had already “already amassed, mostly at Defendant’s expense, a very large set of documents that may be probative as to the class action issue.” In fairness, Judge Baylson concluded that the costs should now shift to the plaintiffs: “In other words, given the large amount of information defendant has already provided, plaintiffs need to assess the value of additional discovery for their class action motion. If plaintiffs conclude that additional discovery is not only relevant, but important to proving that a class should be certified, then plaintiffs should pay for that additional discovery from this date forward, at least until the class action determination is made.” Also, “if the plaintiffs have confidence in their contention that the court should certify the class, then the plaintiffs should have no objection to making an investment.” Moreover, Judge Baylson noted its counsel could afford the investment, as the plaintiffs were represented by “the very successful and well-regarded Philadelphia firm of Berger & Montague. . . . If the Berger & Montague firm believes that this case is meritorious, it has the financial ability to make the investment in discovery.”

Therefore, for production of any requested documents going forward, the plaintiffs were found to have the responsibility for bearing the costs.

So, what do you think?  Should the plaintiffs pay for additional discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

When is a Billion Dollars Not Enough? – eDiscovery Case Law
 

When it’s Apple v. Samsung, of course!

According to the Huffington Post, Apple Inc. requested a court order for a permanent U.S. sales ban on Samsung Electronics products found to have violated its patents along with additional damages of $707 million on top of the $1.05 billion dollar verdict won by Apple last month, already one of the largest intellectual-property awards on record.

Back in August, a jury of nine found that Samsung infringed all but one of the seven patents at issue and found all seven of Apple's patents valid – despite Samsung's attempts to have them thrown out. They also determined that Apple didn't violate any of the five patents Samsung asserted in the case.  Apple had been requesting $2.5 billion in damages.  Trial Judge Lucy Koh could still also triple the damage award because the jury determined Samsung had acted willfully.

Interviewed after the trial, some of the jurors cited video testimony from Samsung executives and internal emails as key to the verdict, which was returned after just 22 hours of deliberation, despite the fact that the verdict form contained as many as 700 points the jury (including charges brought against different subsidiaries of the two companies addressing multiple patents and numerous products).

Role of Adverse Inference Sanction

As noted on this blog last month, Samsung received an adverse inference instruction from California Magistrate Judge Paul S. Grewal just prior to the start of trial as failure to turn “off” the auto-delete function in Samsung’s proprietary “mySingle” email system resulted in spoliation of evidence as potentially responsive emails were deleted after the duty to preserve began.  As a result, Judge Grewal ordered instructions to the jury to indicate that Samsung had failed to preserve evidence and that evidence could be presumed relevant and favorable to Apple.  However, Judge Lucy Koh decided to modify the “adverse inference” verdict issued for the jury to include instructions that Apple had also failed to preserve evidence.  Therefore, it appears as though the adverse inference instruction was neutralized and did not have a significant impact in the verdict; evidently, enough damning evidence was discovered that doomed Samsung in this case.

Friday's Filings

In a motion filed on Friday, Apple sought approximately $400 million additional in damages for design infringement by Samsung; approximately $135 million for willful infringement of its utility patents; approximately $121 million in supplemental damages based on Samsung's product sales not covered in the jury's deliberation; and approximately $50 million of prejudgment interest on damages through December 31 – total of $707 million requested.  Apple also requested an injunction to cover "any of the infringing products or any other product with a feature or features not more than colorably different from any of the infringing feature or features in any of the Infringing Products."

Not surprisingly, Samsung submitted a filing on Friday, requesting a new trial “enabling adequate time and even-handed treatment of the parties”, stating “The Court's constraints on trial time, witnesses and exhibits were unprecedented for a patent case of this complexity and magnitude, and prevented Samsung from presenting a full and fair case in response to Apple's many claims.”

So, what do you think?  Will Apple get more money?  Will Samsung get a new trial?  If so, will there be more discovery sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Another Disclosure of Privileged Documents Fails the Five Factor Test – eDiscovery Case Law
 

In Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., 2:07-CV-116 (N.D. Ohio), Ohio Magistrate Judge Norah McCann King found that the defendant had waived the attorney-client privilege was waived for 347 emails inadvertently produced, because they failed all factors in the five factor test to determine whether the inadvertent disclosure entitles the producing party to the return of the documents in question.

Background of Inadvertent Disclosure

In a breach of contract lawsuit, the defendant produced 7,500 hard copy pages including 347 pages of emails (4.6% of the total) for which legal personnel were senders or recipients. The defendant did not assert privilege on any of the 347 pages of emails until the plaintiff sought to depose those legal personnel. As a result of the defendant seeking to assert privilege on those emails, the plaintiff filed a motion for a determination that the documents are not privileged and submitted them for in camera review.

Five Factor Test

Noting that the producing party has the burden to prove that the disclosure of privileged documents was truly inadvertent, Judge King referenced the now popular five factor test to determine whether an inadvertent disclosure entitles the producing party to have the documents returned, as follows:

“(1) the reasonableness of precautions taken in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the magnitude of the disclosure, (4) any measures taken to mitigate the damage of the disclosures, and (5) the overriding interests of justice.”

Analysis of Factors

With regard to the first factor, despite the fact that the defendant claimed that this production “was reviewed by several layers of attorneys who isolated the privileged documents and prepared for electronic production in the same way” as their previous productions, Judge King noted that the defendant did not specify “who reviewed the production, what steps were taken to review the documents for privilege or whether the production was different in form from prior productions” and noted that no privilege log was produced.  As a result, Judge King found that the defendant failed the first factor.

With regard to the second factor, Judge King compared the rate of disclosure of privileged documents in this case (4.6% of the total) to two other cases where privilege was also waived (134 out of 10,085 pages and 93 documents out of 15,000 documents respectively) and found the number of disclosures to be “relatively high”, so the defendant failed the second factor.

Regarding the third factor, the fact that the documents appeared to be relevant to the plaintiff's claims and they attempted to use them in depositions caused the defendant to fail the third factor.

On the fourth factor, the defendant did immediately invoke privilege when it discovered that the documents had been inadvertently produced.  However, they did not follow the procedure in Federal Rule of Civil Procedure 26(b)(5)(B), which requires:

“If information produced in discovery is subject to a claim of privilege . . . the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party . . . may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”

As Judge King noted, “Medex did not identify any particular documents covered by the privilege, did not provide a proper privilege log and, beyond conclusory statements, Medex did not state a basis for the claimed privilege.”  So, they failed the fourth factor.

At this point, if this was a boxing match, it would be stopped.  In granting the plaintiff’s motion, Judge King stated: “To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.”

So, what do you think?  What do you to ensure your firm will pass the five factor test for inadvertent disclosures of privileged documents?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Daily is Two Years Old Today!
 

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog.  Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom?   Maybe.  Or maybe not.  Wouldn’t that be fun!

As we noted when recently acknowledging our 500th post, we have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!  We now have nearly seven times the visitors to the site as we did when we first started.  We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Litigation Support Blog.com, Litigation Support Technology & News, Ride the Lightning, InfoGovernance Engagement Area, Learn About E-Discovery, Alltop, Law.com, Justia Blawg Search, Atkinson-Baker (depo.com), ABA Journal, Complex Discovery, Next Generation eDiscovery Law & Tech Blog and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

We like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

We talked about best practices for issuing litigation holds and how issuing the litigation hold is just the beginning.

By the way, did you know that if you deleted a photo on Facebook three years ago, it may still be online?

We discussed states (Delaware, Pennsylvania and Florida) that have implemented new rules for eDiscovery in the past few months.

We talked about how to achieve success as a non-attorney in a law firm, providing quality eDiscovery services to your internal “clients” and how to be an eDiscovery consultant, and not just an order taker, for your clients.

We warned you that stop words can stop your searches from being effective, talked about how important it is to test your searches before the meet and confer and discussed the importance of the first 7 to 10 days once litigation hits in addressing eDiscovery issues.

We told you that, sometimes, you may need to collect from custodians that aren’t there, differentiated between quality assurance and quality control and discussed the importance of making sure that file counts add up to what was collected (with an example, no less).

By the way, did you know the number of pages in a gigabyte can vary widely and the same exact content in different file formats can vary by as much as 16 to 20 times in size?

We provided a book review on Zubulake’s e-Discovery and then interviewed the author, Laura Zubulake, as well.

BTW, eDiscovery Daily has had 150 posts related to eDiscovery Case Law since the blog began.  Fifty of them have been in the last six months.

P.S. – We still haven't missed a business day yet without a post.  Yes, we are crazy.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Twitter Loses Appeal in People v. Harris
 

As reported in the Gibbons E-Discovery Law Alert blog, Twitter filed an appeal of the trial court’s decision in People v. Harris with the Appellate Division, First Department in New York, arguing that Twitter users have the right to quash subpoenas pursuant to Twitter’s terms of service agreement as well as because defendants’ constitutional rights are implicated by a government-issued subpoena to a third party.  Unfortunately for Twitter, it didn’t take long for the appellate court panel to rule, as they denied Twitter’s motion for a stay of enforcement of the Trial Court’s order to produce Malcolm Harris’s tweets last week.

Attempts to Quash the Subpoena Fail

Back in April, Harris, an Occupy Wall Street activist facing criminal charges, tried to quash a subpoena seeking production of his Tweets and his Twitter account user information in his New York criminal case.  That request was rejected, so Twitter then sought to quash the subpoena themselves, claiming that the order to produce the information imposed an “undue burden” on Twitter and even forced it to “violate federal law”.

Then, on June 30, New York Criminal Court Judge Matthew Sciarrino Jr. ruled that Twitter must produce tweets and user information of Harris, noting: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist…Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”  Judge Sciarrino indicated that his decision was “partially based on Twitter's then terms of service agreement”, which was subsequently modified to add the statement “You Retain Your Right To Any Content You Submit, Post Or Display On Or Through The Service.”

Twitter Continues to Fight Ruling

After the ruling, the New York District Attorney filed an order for Twitter to show cause as to why they should not be held in contempt for failure to produce the tweets. Twitter responded by seeking the stay of enforcement pending the appeal.  Last week, Twitter was given a deadline by the Trial Court during a hearing on the District Attorney’s motion to produce Harris’s information by Friday September 14 or face a finding of contempt. Judge Sciarrino even went so far as to warn Twitter that he would review their most recent quarterly financial statements in determining the appropriate financial penalty if Twitter did not obey the order.

So, what do you think?  With the appeal denied, will Twitter finally produce the plaintiff’s information?  What impact does this case have on future subpoenas of Twitter user information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: No Sanctions For Spoliation With No Bad Faith
 

In Sherman v. Rinchem Co., No. 11-2932, 2012 U.S. App. (8th Cir. Aug. 6, 2012), the plaintiff in a defamation case against his former employer appealed the district court’s denial of both his summary judgment motion and request for an adverse inference jury instruction. The district court had decided the case under Minnesota law, which “provides that ‘even when a breach of the duty to preserve evidence is not done in bad faith, the district court must attempt to remedy any prejudice that occurs as a result of the destruction of the evidence.’” In contrast, as the Eighth Circuit pointed out, in this case where the parties had diversity, and a question remained as to whether state or federal spoliation laws were applicable, federal law requires “a finding of intentional destruction indicating a desire to suppress the truth” in order to impose sanctions.

The plaintiff was fired from his employer after he allegedly lied during the employer’s investigation of complaints about his behavior. As part of the investigation, the plaintiff was interviewed by the employer’s human resources director, where the director took notes. The plaintiff argued that he requested the employer provide him with the notes because he believed they were critical to his case. However, the human resources director claimed she lost the notes, but she did not destroy them.

Arguing that the employer’s loss of the notes amounted to spoliation of evidence, the plaintiff “contended that the district court should grant his motion for summary judgment or, in the alternative, give an adverse-inference instruction to the jury for spoliation of evidence.” The court, however, found that at most the employer’s actions were negligent, not in bad faith, and therefore would not support the sanctions sought by the plaintiff. In the course of speaking to the plaintiff and his counsel on the record, the plaintiff’s counsel conceded that it did appear the employer’s actions were non-intentional and amounted only to negligence. The district court ultimately denied the plaintiff’s motion for summary judgment without prejudice, offering that he could return and seek another remedy short of summary judgment or an adverse inference instruction.

First, the Eighth Circuit found that in diversity actions, “federal law applies to the imposition of sanctions for the spoliation of evidence” in this case because “a direct conflict exists between federal law and Minnesota law.” Therefore, for spoliation sanctions to be applicable, the court had to find bad faith. Furthermore, the record reflected—and the plaintiff conceded—there had been no bad faith on the part of the employer.

Therefore, the court upheld the denial of the plaintiff’s motion for summary judgment and request for an adverse inference instruction.

So, what do you think?  Should either court have allowed the sanctions?  Or should lesser sanctions be allowed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Social Media Is No Different than eMail for Discovery Purposes
 

In Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012), Oregon Magistrate Judge Paul Papak found that social media is just another form of electronically stored information (ESI), stating “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

In this employment discrimination case, the defendants sought discovery from the plaintiff, including “all of Robinson's email and text message communications with current and former Jones Lang employees” and, most notably “all social media content involving Robinson since July 1, 2008, including photographs, videos, and blogs, as well as Facebook, linkedIn, and MySpace content that reveals or relates to Robinson's. "emotion, feeling, or mental state," to "events that could be reasonably expected to produce a significant emotion, feeling, or mental state," or to allegations in Robinson's complaint”.

In rendering his decision, Judge Papak referenced “[t]he most frequently cited and well-reasoned case addressing the discoverability of social media communications involving emotional distress” (E.E. O. C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010)).  In that case, Judge Papak noted that “the court recognized that social media can provide information inconsistent with a plaintiffs allegation that defendant's conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff s allegations of the severity of that distress.”

With the principles of the Simply Storage case in mind, Judge Papak ordered the plaintiff to produce:

“(I) any:

(a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff's own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to:

(a) any significant emotion, feeling, or mental state allegedly caused by defendant's conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant's conduct.”

Understanding the difficulty of establishing an appropriate level of discovery, Judge Papak stated “As Simply Storage recognized, it is impossible for the court to define the limits of discover in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production…Nevertheless, the court expects counsel to determine what information falls within the scope of this court's order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what "has and has not been produced and can challenge the production if it believes the production falls short of the requirements of this order."…Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiffs deposition or other discovery.”

So, what do you think?  Should all media be handled the same in discovery, or should there be differences?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Google Awarded $1 Million from Oracle, But Denied Discovery Costs
 

As noted in SiliconBeat and ARN, Judge William Alsup ordered Oracle on Tuesday to pay Google $1 million as reimbursement for Google’s fees for a court-appointed expert in their court battle over intellectual property and Google’s Android software.  However, the ruling is only a partial victory for Google, who was seeking $4 million from Oracle in reimbursement of costs associated with the case.

Claims Against Google Dismissed Despite Inadvertent Disclosure

As you may recall, claims against Google that its Android mobile phone platform infringes Oracle's copyrights relating to the Java computer language were dismissed by Judge Alsup back on May 31.  The claims were dismissed despite a significant inadvertent disclosure of information during discovery by Google, where drafts of a privileged email were not caught by Google’s search technology since they didn’t include the words “Attorney Work Product”, nor were they yet addressed to in-house counsel.  Judge Alsup ruled late last year that the draft emails were not privileged and the Federal Circuit court upheld that ruling.  However, these rulings did not ultimately cost Google as Oracle’s claims were dismissed.  As Judge Alsup noted, “Oracle initially sought six billion dollars in damages and injunctive relief but recovered nothing after nearly two years of litigation and six weeks of trial.”  Oracle plans to appeal.

Google Seeks Recovery of Costs

As the prevailing party, Google was able to seek recovery of costs and did so, seeking nearly $4 million from Oracle.  As noted above, Judge Alsup awarded Google $1 million as reimbursement for Google’s fees for a court-appointed expert.  However, Judge Alsup rejected Google's request that Oracle also pay $2.9 million for discovery-related costs, calling the search giant's arguments "unpersuasive".

“The problem with Google's e-discovery bill of costs is that many of [the] item-line descriptions seemingly bill for 'intellectual effort' such as organizing, searching, and analyzing the discovery documents," Judge Alsup stated in the ruling. "Most egregious are attempts to bill costs for 'conferencing,' 'prepare for and participate in kickoff call,' and communications with co-workers, other vendors, and clients. These are non-taxable intellectual efforts.”

So, what do you think?  Should Google have been reimbursed more?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Citing Rule 26(g), Court Orders Plaintiff’s Counsel to Disclose Search Strategy
 

Our 501st post on the blog addresses S2 Automation LLC v. Micron Technology, No. CIV 11-0884 JB/WDS, 2012 U.S. Dist. (D. New Mexico, Aug 9, 2012), where New Mexico District Judge James Browning ordered the plaintiff’s attorneys to disclose the search strategy their client used to identify responsive documents, based on Federal Rule 26(g) that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Motion to Compel

Last October, S2 Automation filed a Complaint against Micron Technology for breach of contract, conversion, misrepresentation and unjust enrichment.  After various objections to Micron’s requests for production by S2, Micron filed a Motion to Compel, indicating that S2 Automation “has utterly failed to meet its obligation to meaningfully respond to discovery in this matter” and requested, among other things that the court order S2 Automation to identify the search strategy it used to provide responsive documents to its requests for production.

A sworn declaration from one of Micron’s attorneys indicated that, during a discovery conference, it became apparent that S2′s counsel may not have worked with their client sufficiently during the discovery process and, as a result, may have failed to provide a number of responsive documents:

“During that call, we discussed the April 25 deficiency letter and Micron’s request that S2 supplement its production. Counsel for S2 stated that he had not yet reviewed the letter in detail. We then discussed the format for production of S2′s documents. Counsel stated that he was not aware that S2 had separated attachments from e-mails, that he had delegated the process of gathering documents to S2, and that he was generally unaware of the manner in which S2 had provided the documents. Counsel also stated that he was unsure what protocol S2 followed to locate responsive documents.”

S2’s Obligations under Federal Rule 26(g)

Micron asserted in its motion to compel that S2′s counsel violated their obligations under Federal Rule 26(g), stating “it is not proper for counsel to sit back and allow the client to search for documents without active direction and participation by counsel; to the contrary, counsel must be actively involved in the search to ensure that all responsive documents have been located, preserved, and produced.”  In response, S2′s attorneys denied that they had failed to supervise the discovery process, indicating that they had “met with the client on multiple occasions during the discovery process in order to organize and respond to discovery.”

Judge Browning’s Ruling

Noting that Rule 26(g) imposes an obligation on the attorney who signs the discovery response to conduct “a reasonable inquiry into the facts and law supporting the pleading”, Judge Browning stated:

“Accordingly, it can become necessary to evaluate whether an attorney complied with his rule 26(g) obligations and to evaluate the strategy an attorney used to provide responsive discovery, with relevant circumstances including: (i) “[t]he number and complexity of the issues”; (ii) “[t]he location, nature, number and availability of potentially relevant witnesses or documents”; (iii) “[t]he extent of past working relationships between the attorney and the client, particularly in related or similar litigation”; and (iv) “[t]he time available to conduct an investigation.” 6 J. Moore, Moore’s Federal Practice, § 26.154[2][a], at 26-615 (3d ed. 2012). Consequently, the analysis in which courts must engage to evaluate whether a party’s discovery responses were adequate is often a fact-intensive inquiry that requires evaluation of the procedures the producing party adopted during discovery.”

As a result, Judge Browning ruled that S2 Automation would have to provide to Micron “its search strategy for identifying pertinent documents, including the procedures it used and how it interacted with its counsel to facilitate the production process.”

So, what do you think?  Was the ruling appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

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