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Electronic Discovery

Court Rules to Limit Scope of Discovery, Noting that “Searching for ESI is only one discovery tool” – eDiscovery Case Law

In United States v. Univ. of Neb. at Kearney, 4:11CV3209 (D. Neb. Aug. 25, 2014), Nebraska Magistrate Judge Cheryl R. Zwart denied the government’s motion to compel discovery, finding that “ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks” and stating that searching for ESI “should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions”.

This Fair Housing Act case involved a case brought about by the government with claims that students were prohibited or hindered from having “emotional assistance animals in university housing when such animals were needed to accommodate the requesting students’ mental disabilities.  Discovery has been a lengthy and disputed process since the parties filed a Stipulation and Order Regarding Discovery back in March of 2012.

The scope of ESI was a major part of the dispute. The defendants objected that the government’s search parameters were too expansive, and the cost of compliance would be unduly burdensome. The defendants explained that the cost of retrieval, review, and production would approach a million dollars, and provided an outline identifying the document “hits” and the estimated discovery costs.  The government served revised search terms on April 14, 2014. Although narrowed, the government’s search terms would still yield 51,131 responsive documents, and based on the defendants’ estimate, would require the defendants to expend an additional $155,574 to retrieve, review, and produce the responsive ESI.

To date, the defendants had paid $122,006 to third-party vendors for processing the government’s ESI requests and proposed the requests be narrowed to the “housing” or “residential” context. The defendants’ search terms would yield 10,997 responsive documents.  The Government did not want to limit the scope of discovery and recommended producing all the ESI subject to a clawback agreement for the Government to search the ESI. The Defendants argued such an agreement would violate the Family Educational Rights and Privacy Act by disclosing student personal identifiable information without their notice and consent.

The court had ordered the parties to provide answers to specific questions regarding their efforts at resolving ESI as part of any motion to compel filed. The government’s responsive statement does not include information comparing the cost of its proposed document retrieval method and amount at issue in the case, any cost/benefit analysis of the discovery methods proposed, or a statement of who should bear those costs.

Judge Zwart stated that she “will not order the university to produce ESI without first reviewing the disclosure, even with the protection afforded under a clawback order. And if UNK must review the more than 51,000 documents requested by the government’s proposed ESI requests, the cost in both dollars and time exceeds the value to be gained by the government’s request.”

Illustrating the lack of proportionality in the government’s requests, Judge Zwart stated “Searching for ESI is only one discovery tool. It should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions, and it should not be ordered solely as a method to confirm the opposing party’s discovery is complete. For example, the government proposes search terms such as ‘document* w/25 policy.’ The broadly used words “document” and “policy” will no doubt retrieve documents the government wants to see, along with thousands of documents that have no bearing on this case. And to what end? Through other discovery means, the government has already received copies of UNK’s policies for the claims at issue.”

As a result, Judge Zwart stated that “the court is convinced ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks. Standard document production requests, interrogatories, and depositions should suffice—and with far less cost and delay.”

So, what do you think?  Were the government’s requests overbroad or should they have been granted their motion to compel?  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.

New Survey Shows eDiscovery Workload, Predictive Coding Use Increasing – eDiscovery Trends
eDiscovery workload, the use of predictive coding and projected rate of adoption of technically assisted review are all up significantly, according to a new report by recruiting and staffing firm The Cowen Group.

In its Executive Summary, the Q2 2014 Quarterly Critical Trends Report highlighted “three compelling and critical trends”, as follows:

  1. Workload and the rate of increase is up, significantly
  2. The demand for talent is still increasing, however at a much slower rate than last year.
  3. The use of predictive coding (PC) is up by 40 percent but the projected rate of adoption of technically assisted review (TAR) and PC is dramatically up by 75 percent.

The survey represents responses from one hundred eDiscovery partners and litigation support managers/directors from 85 Am Law 200 law firms.  Not all participants responded to all of the questions.  Some of the key findings from the survey are as follows:

  • 64 percent of respondents reported an increase in workload during the first half of 2014, up 12 percent from last year’s survey;
  • For those reporting an increase in workload, 88 percent replied that this growth was attributed to the higher number of cases they are managing, 77 percent attributed it to the larger size of each case and 65 percent attributed it to both factors;
  • 56 responding firms project that their workload will continue to increase over the next 6 months;
  • Despite the increase in workload and expected growth, over half of responding firms (50 out of 96) said the size of their eDiscovery departments has stayed the same, 26 responding firms reported an increase and 20 responding firms reported a decrease;
  • The majority of respondents (55 out of 97) also expect their eDiscovery department sizes to remain the same through the end of the year, with 41 out of the remaining 42 responding firms expecting an increase;
  • Based on responses, the strongest demand for talent over the past 6 months was in the positions of analysts and project managers;
  • As for TAR and predictive coding, 30 out of 78 responding firms reported that their use of TAR in review workflows increased over the last 6 months (46 out of the remaining 48 firms reported that it stayed the same), with a whopping 52 out of 78 responding firms reporting an expected increase over the rest of the year.

The FREE 8 page report has several additional survey results and is presented in an easy to read graphical format.  To review the report, click here.

So, what do you think?  Do any of those numbers and trends surprise you?  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 Throwback Thursdays – How Databases Were Used, Circa Early 1980s, Part 4

So far in this blog series, we’ve taken a look at the ‘litigation support culture’ in the late 1970’s and early 1980’s, and we’ve covered how a database was built.  We’re going to move on to discuss how those databases were used.  But first, if you missed the earlier posts in this series, they can be found here, here, here, here, here, here and here.

After coding and keying, data from magnetic tapes was loaded into a database, usually housed on a vendor’s timeshare computer.  This was before business people had computers on their desks, so litigation teams leased computer terminals – often called “dumb terminals”.  The picture above is of a Texas Instruments Silent 700 terminal – which was the standard for use by litigators.  This photo was taken at the Texas State Historical Museum.

These terminals were portable and came housed in a hard plastic case with a handle.  By today’s standards, they were not “compact”.  They were in fact quite heavy and not as easy to tote around as the laptops and tablets of today.  As you can see, there’s no screen.  You inserted a roll of thermal paper which ‘spit out’ search results.  And, as you can see, you accessed the mainframe using a standard telephone.  The phone’s handset was inserted into an acoustic coupler on the terminal, and you dialed the computer’s phone number for a connection.  You’re probably thinking that retrievals were pretty slow over phone lines…  yes and no.  Certainly response time wasn’t at the level that it typically is today, but the only thing being transmitted in search sessions was data.  There were no images.  So retrievals weren’t as slow as you might expect.

Searches were done using very ‘precise’ syntax.  You asked the database for information, and it collected precisely what you asked for.  There weren’t fuzzy searches, synonym searches, and so on.  The only real search that provided flexibility was stem searching.  You could, for example, search for “integrat*” and retrieve variations such as “integrate”, integrates”, “integrated” and “integration”.  The most commonly used search engines required that you start a search with a command (like “find”, “sort”, or “print”).  If you were doing a “find” command, that was followed by the field in which you wanted to search, an equal sign, and the word you were searching for.  To search for all documents authored by John Smith, your command might look like:

Find Auth=Smith-J*

The database responded by telling you how many records it found that matched your criteria.  Usually the next step was to sort the results (often by date or document number), and then print the results – that is, print the information that was coded for each record.  Keep in mind, “prints” were on a continuous roll of thermal paper spit out by the machine.  More often than not, searches were done by junior litigation team members and results were provided to a senior attorney to review.  So the thermal paper roll with the results was usually flattened and folded accordion-style to make reviews easier.

In next week’s post, we’ll discuss retrieval of the actual documents.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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.

Court Denies Plaintiff’s Fallback Request for Meet and Confer after Quashing its Subpoena – eDiscovery Case Law
In Boston Scientific Corporation v. Lee, 1:13-cv-13156-DJC, (N.D. Cal., Aug 4, 2014), California Magistrate Judge Paul S. Grewal found time to preside over a case other than Apple v. Samsung and granted the motion to quash the plaintiff’s subpoena for the defendant’s laptops, refusing the plaintiff’s fallback position to meet and confer and referencing Leave it to Beaver in the process.

The defendant left the employment of the plaintiff and began working for a competitor, which caused the case to be filed against him, claiming theft of trade secrets and violation of a confidentiality agreement (by downloading confidential information onto a USB thumb drive).  The defendant’s new employer assigned him a laptop when he started his employment, which he used to both perform his job duties and communicate with his attorneys. Several weeks after the lawsuit was filed, the defendant’s employer segregated this laptop with a third party e-discovery vendor, and issued him a second one.

The defendant’s employer also produced forensic information about the contents of the first laptop to the plaintiff in the form of file listing reports, which disclose extensive metadata of the files contained on the laptop, USB reports, and web browsing history reports.  When the plaintiff pressed for more, the defendant’s employer offered to have an independent vendor review a full forensic image of the first laptop to search for pertinent information, including a review of any deleted files.  The plaintiff refused, requesting forensic discovery from both laptops and issued a subpoena, to which the defendant’s employer filed a motion to quash.

Judge Grewal began his order as follows:

“This case illustrates a recurring problem in all civil discovery, especially in intellectual property cases. A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. Think Eddie Haskell singing the Beaver’s praises to June Cleaver, only moments after giving him the business in private. Having considered the arguments, the court GRANTS Nevro’s motion to quash.”

Explaining his decision, Judge Grewal stated “No doubt there exists discoverable information on the two laptops, but by demanding nothing less than a complete forensic image of not just one but two laptops belonging to a direct competitor, Boston Scientific demands too much. Such imaging will disclose privileged communications related to the litigation as well as irrelevant trade secrets from a nonparty-competitor.  Boston Scientific’s subpoena therefore seeks discovery of protected matter, something plainly not permitted under Rule 45, rendering the subpoena overbroad and imposing an undue burden on Nevro.”

Judge Grewal noted that the plaintiff “[a]s a fall back”, proposed what the defendant’s employer had originally proposed: the retention of an independent vendor to “review a full forensic image of the Initial Laptop to search for pertinent information, including a review of any deleted files.”  Judge Grewal closed the door on that request as well, stating “to allow Boston Scientific now to seek shelter from a fallback position that Nevro previously tendered in good faith would make a mockery of both parties’ obligation to meet and confer in good faith from the start.  The time to tap flexibility and creativity is during meet and confer, not after.”

So, what do you think?  Should the plaintiff have been granted its fall back request or was it too late for compromise?  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.

How Much Will it Cost? – eDiscovery Best Practices

By far, the most important (and, therefore, the most asked) question asked of eDiscovery providers is “How much will it cost?”.  Actually, you should be asking a few questions to get that answer – if they are the right questions, you can actually get the answer you seek.

With these questions, you can hopefully prevent surprises and predict and control costs:

  • What is the Unit Price for Each Service?: It’s important to make sure that you have a clear understanding of every unit price the eDiscovery provider includes in an estimate.  Some services may be charged per-page or per-document, while others may be charged per gigabyte, and others may be charged on an hourly basis.  It’s important to understand how each service is being charged and ensure that the price model makes sense.
  • Are the Gigabytes Counted as Original or Expanded Gigabytes?: For the per gigabyte services, it’s also important to make sure that you whether they are billed on the original GBs or the expanded GBs.  Expanded GBs can be two to three times as large (or more) as the original GBs.  Some services are typically billed on the original GBs (or at least the unzipped GBs) while others are typically billed on the expanded GBs.  It’s important to know which metric is used; otherwise, your ESI collection may be larger than you think and you may be in for a surprise when the bill comes.
  • Will I Get an Estimate in Advance for Hourly Billed Services?: When you ask for specific hourly billed services from the provider (such as professional consulting or technician services) to complete a specific task, it’s important to get an estimate to complete that task as well as advanced notification if the task will require more time than estimated.
  • What Incidental Costs are Billed?: It’s not uncommon (or unreasonable) for incidentals like project management, supplies and shipping to be included in invoices.  In particular, project management services can be an important component to the services provided by the eDiscovery provider.  But, the rates charged for these incidentals can vary widely.  Understanding what incidentals are being billed and the rates for those services is important to controlling costs.
  • If Prices are Subject to Change, What is the Policy for Those Changes and Notification of Clients?: Let’s face it, prices do change, even in the eDiscovery industry.  In ongoing contracts, most eDiscovery providers will retain the right to change prices to reflect the cost of doing business (whether they exercise those rights or not).  It’s important to know the terms that your provider has set for the ability to change prices, what the notification policy is for those price changes and what your options are if the provider exercises that right.

With the right questions and a good understanding of your project parameters, you can get to the answer to that elusive question “How much will it cost?”.

So, what do you think?  How do you manage costs with your eDiscovery providers?  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.

Though it was “Switching Horses in Midstream”, Court Approves Plaintiff’s Predictive Coding Plan – eDiscovery Case Law

In Bridgestone Americas Inc. v. Int’l Bus. Mach. Corp., No. 3:13-1196 (M.D. Tenn. July 22, 2014), Tennessee Magistrate Judge Joe B. Brown, acknowledging that he was “allowing Plaintiff to switch horses in midstream”, nonetheless ruled that that the plaintiff could use predictive coding to search documents for discovery, even though keyword search had already been performed.

In this case where the plaintiff sued the defendant for a $75 million computer system that it claimed threw its “entire business operation into chaos”, the plaintiff requested that the court allow the use of predictive coding in reviewing over two million documents.  The defendant objected, noting that the request was an unwarranted change to the original case management order that did not include predictive coding, and that it would be unfair to use predictive coding after an initial screening had been done with keyword search terms.

Judge Brown conducted a lengthy telephone conference with the parties on June 25 and, began the analysis in his order by observing that “[p]redictive coding is a rapidly developing field in which the Sedona Conference has devoted a good deal of time and effort to, and has provided various best practices suggestions”, also noting that “Magistrate Judge Peck has written an excellent article on the subject and has issued opinions concerning predictive coding.”  “In the final analysis”, Judge Brown continued, “the uses of predictive coding is a judgment call, hopefully keeping in mind the exhortation of Rule 26 that discovery be tailored by the court to be as efficient and cost-effective as possible.”

As a result, noting that “we are talking about millions of documents to be reviewed with costs likewise in the millions”, Judge Brown permitted the plaintiff “to use predictive coding on the documents that they have presently identified, based on the search terms Defendant provided.”  Judge Brown acknowledged that he was “allowing Plaintiff to switch horses in midstream”, so “openness and transparency in what Plaintiff is doing will be of critical importance.”

This case has similar circumstances to Progressive Cas. Ins. Co. v. Delaney, where that plaintiff also desired to shift from the agreed upon discovery methodology for privilege review to a predictive coding methodology.  However, in that case, the plaintiff did not consult with either the court or the requesting party regarding their intentions to change review methodology and the plaintiff’s lack of transparency and lack of cooperation resulted in the plaintiff being ordered to produce documents according to the agreed upon methodology.  It pays to cooperate!

So, what do you think?  Should the plaintiff have been allowed to shift from the agreed upon methodology or did the volume of the collection warrant the switch?  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.

An Insufficient Password Will Leave You Exposed – eDiscovery Best Practices

In the first year of our blog (which now has over 1,000 posts!), we published a post regarding the importance of a strong password.  Given recent events with the Home Depot data breach and several celebrities’ accounts being hacked on Apple’s iCloud, it seems timely to revisit and update the topic.

As a cloud software provider, we at CloudNine Discovery place a premium on the security of our clients’ data.  For example, the servers hosting data for our OnDemand® platform are housed in a secured, SAS 70 Type II certified Tier 4 Data Center in Houston (which is where our headquarters is).  The security at this data center is military grade: 24 x 7 x 365 onsite security guards, video surveillance, biometric and card key security required just to get into the building.  Not to mention a building that features concrete bollards, steel lined walls, bulletproof glass, and barbed wire fencing.

Pretty secure, huh?  However, no matter how secure a system is, whether it’s local to your office or stored in the “cloud”, an insufficient password that can be easily guessed can allow hackers to get in and steal your data.  Some dos and don’ts:

Dos:

  • If you need to write passwords down, write them down without the corresponding user IDs and keep the passwords with important documents like your passport, social security card and other important documents you’re unlikely to lose.  Or, better yet, use a password management application that encrypts and stores all of your passwords.
  • Mnemonics make great passwords.  For example, “I work for CloudNine Discovery in Houston, Texas!” could become a password like “iw4C9diht!”. (by the way, that’s not a password for any of my accounts, so don’t even try)  😉
  • Change passwords every few months.  Some systems require this anyway.  You should also change passwords immediately if your laptop (or other device that might contain password info) is stolen.

Don’ts:

  • Don’t use the same password for multiple accounts, especially if they have sensitive data such as bank account or credit card information.
  • Don’t email passwords to yourself – if someone is able to hack into your email, then they have access to those accounts as well.
  • Personal information may be easy to remember, but it can also be easily guessed, so avoid using things like your kids’ names, birthday or other information that can be guessed by someone who knows you.
  • As much as possible, avoid logging into sensitive accounts when using public Wi-Fi as it is much easier for hackers to tap into what you’re doing in those environments.  Checking your bank balance while having a latte at Starbucks is not the best time.

The best and most difficult passwords to hack generally have the following components – many systems, including OnDemand (we require at least three of these) – require one or more of these:

  • Length: Good passwords are at least eight characters in length.  Longer passwords may be more difficult to enter, but you get used to entering them quickly,
  • Upper and Lower Case: Include at least one upper case and one lower case character.  For best results, don’t capitalize the first character (harder to guess),
  • Number: Include at least one number.  If you want to be clever, “1’ is a good substitute for “i”, “5” for “s”, “4” for “for”, etc.
  • Special Character: Also, include at least one special character, for best results, not at the beginning or end of the password.

When you follow the best practices above, your password should be much more difficult to hack, keeping you from feeling “exposed”.

So, what do you think?  How secure are your passwords?  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 Throwback Thursdays – How Databases Were Built, Circa Early 1980s, Part 3

In the last couple of Throwback Thursday posts we covered the first stages in a database-building project (circa 1980), including designing and planning a database, preparing for a project, establishing an archive, coding and qc, and production status record keeping. The next steps are described here.  But first, if you missed the earlier posts in this series, they can be found here, here, here, here, here and here.

Batching and Keying: After coding and quality control, the next step was batching the coding forms. An archive librarian removed completed coding forms from folders, ‘batched them into groups, updated the activity log, and packaged the forms for shipping.  The packaged forms were shipped off to a keypunch vendor – usually located outside of the U.S.  The vendor I worked for used a keying company located in Jamaica. The vendor keyed the information from the forms to magnetic computer tapes (see the image above). Those tapes and the coding forms were then shipped back to the coding vendor.  Depending on the size of the batch, keying could take days.  And there was shipping time on each end.  It could take a week or more to get data back for large batches.

Data Loading:  As I mentioned in an earlier post, for the most part, databases ‘lived’ on a vendor’s mainframe computer and were accessed by clients using computer terminals.  When the vendor received tapes from a keypunch vendor, the next step was loading to its mainframe computer.

End-User Training:  While this still happens today, training was a much bigger deal back in the day.  The normal business person was not computer literate – most of our clients had never used a computer before.  Training usually took a day or two, and it involved educating users on how to do searches, on how databases were structured, and on how data was coded in a specific database.

A word on schedules:  Today we live in a world where everything is done almost immediately.  Once documents are collected, processed and loaded (all of which can happen pretty quickly), documents are available for searching.  With initial databases, it usually took months before the first documents were available for searching.  Every step in the process (photocopying, archive establishment, coding, qc, batching, and keying ) took days or weeks.  Of course we didn’t wait for a step to be completed for all the documents before starting the next step, but even so, it was a long time before the first documents were available for searching.

A word on backups:  In the electronic world we live in today, we rely on computer backups…  and we do them frequently.  Even if there’s a significant technical problem, we can usually go to a fairly recent backup without too much work being lost.  This was always a concern with initial database projects.  Our law firm clients usually didn’t send us the ‘original working copy’ of a document collection.  They had a second copy made for the database work.  But a lot of work was done and a lot of time elapsed between delivery of those documents and data being available in the database.  Problems like fire, flooding, and packages lost in shipping could mean lost work.  And those things happened on occasion.

In next week’s post, we’ll take a look at how databases were used, and how searching and document retrieval worked.

Please let us know if there are eDiscovery topics you’d like to see us cover in eDiscoveryDaily.

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.

Our 1,000th Post! – eDiscovery Milestones

When we launched nearly four years ago on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis.  Now, after doing so each business day (except for one), I’m happy to announce that today is our 1,000th post on eDiscovery Daily!

We’ve covered the gamut in eDiscovery, from case law to industry trends to best practices.  Here are some of the categories that we’ve covered and the number of posts (to date) for each:

We’ve also covered every phase of the EDRM (177) life cycle, including:

Every post we have published is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Comparing our first three months of existence to now, we have seen traffic on our site grow an amazing 474%!  Our subscriber base has more than tripled in the last three years!  We want to take this time to thank you, our readers and subcribers, for making that happen.  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan University, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, e-Discovery Team ® 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!

I also want to extend a special thanks to Jane Gennarelli, who has provided some serial topics, ranging from project management to coordinating review teams to what litigation support and discovery used to be like back in the 80’s (to which some of us “old timers” can relate).  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 999 previous posts.  Now is your chance to catch up!  😉

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.

Court Refuses to Ban Samsung from Selling Products Found to Have Infringed on Apple Products – eDiscovery Case Law

Apple may have won several battles with Samsung, including ultimately being awarded over $1 billion in verdicts, as well as a $2 million sanction for the inadvertent disclosure of its outside counsel firm (Quinn Emanuel Urquhart & Sullivan LLP) commonly known as “patentgate”.  But, Samsung has may have won the war with the court’s refusal to ban Samsung from selling products that were found to have infringed on Apple products.

Last Wednesday, U.S. District Judge Lucy H. Koh refused to permanently ban Samsung from selling several mobile phones and tablets that a jury found infringed on Apple patents, ruling Apple hadn’t shown that it would suffer irreparable harm to its reputation.  In her order, Judge Koh stated that the plaintiff hadn’t provided sufficient evidence that it will suffer lost sales specifically due to Samsung’s infringement of the three patents at issue, nor had it demonstrated that the patented inventions drive consumer demand for Samsung’s infringing products.

In its motion for a permanent injunction, Apple had argued that the nearly $120 million in damages that was awarded in May wasn’t enough to compensate Apple for the harm caused by Samsung’s infringement. Apple stated that the ban was necessary to separate Apple’s reputation as an “amazingly innovative company” from Samsung’s reputation as a “fast follower.”

Apple argued that trial evidence demonstrated a causal nexus between the alleged sales-based harm and Samsung’s infringing behavior, but argued, however, that when reputational harm is alleged, the second prong of the irreparable harm test falls away and no separate proof of causal nexus is required.  However, Judge Koh found “no reason to depart from the Federal Circuit’s guidance that a patentee must demonstrate a causal nexus between infringement and any alleged irreparable harm – including injury to reputation.”  She also noted that “Samsung argues persuasively that Apple’s reputation has proved extremely robust … weakening Apple’s claim that it has suffered or will suffer irreparable harm to its reputation from infringement of only three patents.”

So, what do you think?  Will the Apple-Samsung litigation ever end?  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.