March 2012 – Electronic Discovery Law

Following Comments on Cost Allocation, Court Orders Parties to Split Some Costs and that Plaintiff Post Bond to Receive other Requested Discovery

Mar 29 2012

Lubber Inc. v. Optari, LLC, No. 3:11-0042, 2012 WL 899631 (M.D. Tenn. Mar. 15, 2012)

In this case, the court considered defendants’ motion for a protective order to restrict the relevant time frame for additional electronic searches and plaintiff’s motion to compel discovery in nine categories. Upon consideration of the issues, the court denied defendants’ motion, but ordered the parties to split the expenses related to material not already produced. Regarding plaintiff’s motion to compel, the court indicated its concern that “Plaintiff will be able to win on these issues” and therefore required that plaintiff post a $10,000 bond, intended to “allow the Plaintiff to secure this information if they wish to pursue this discovery, while at the same time offering some protection to the Defendants should they prevail.”

Da Silva Moore Plaintiffs File Reply Brief In Support of Objections to Discovery Rulings

Mar 21 2012

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y.)

As expected, on March 19, 2012, plaintiffs in this case filed their Reply in Support of Rule 72(a) Objection to Magistrate Judge Peck’s February 8, 2012 Discovery Rulings. In it, plaintiffs summarize their arguments as follows:

Extrajudicial activities aside, what should matter is whether MSL’s Method will ensure that MSL fulfills its obligations under Rule 26 to produce reasonable discovery. Here, the answer is a resounding no. Judge Peck’s adoption of MSL’s Method was contrary to law and/or clearly erroneous for two main reasons. First, Judge Peck adopted MSL’s Method on an insufficient record; Judge Peck failed to hold an evidentiary hearing or obtain expert testimony as to its reliability and accuracy. Second, MSL’s Method fails to meet basic standards for reliability; the protocol risks failing to capture up to 65% of the documents material to Plaintiffs’ case. Accordingly, Plaintiffs respectfully request that the Court reverse Judge Peck’s ESI rulings.

In support of their position, plaintiffs also filed declarations from their attorney, Siham Nurhussein, and their expert in this case, Paul J. Neale. All that remains now is for District Court Judge Andrew Carter, Jr. to issue his ruling, which will be reported on this blog when it becomes available.

For a copy of Plaintiffs’ Reply, click here.
For a copy of the Declaration of Siham Nurhussein, click here.
For a copy of the Declaration of Paul J. Neale, click here.

Third Circuit Addresses Taxable Costs: Vacates Award of the District Court, Remands with Instructions to Re-Tax Costs in Accordance with Opinion

Mar 20 2012

Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., 674 F.3d 158 (3d Cir. 2012)

On appeal, the Third Circuit vacated the District Court’s approval of taxable costs related to electronic discovery and remanded with instruction to re-tax in accordance with this opinion. Specifically, the court concluded that the relevant vendors’ charges “would not qualify as fees for ‘exemplification’” and that “of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved ‘copying’” and were thus recoverable.

District Court Judge to Have Last Word on Computer-Assisted Review, Grants Plaintiffs’ Motion to Allow Additional Briefing

Mar 16 2012

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y.)

On March 13, 2012, approximately 2 ½ weeks after Magistrate Judge Andrew Peck issued his much-talked about opinion approving “computer-assisted review,” District Court Judge Andrew L. Carter, Jr. has granted plaintiffs’ request to submit additional briefing on their objections to the ruling.

Eastern District of Texas Adopts its own [Model] Order Regarding E-Discovery in Patent Cases

Mar 14 2012

Signed by Chief District Judge Leonard Davis on February 27, 2012, amendments to the Local Rules in the Eastern District of Texas include a [Model] Order Regarding E-Discovery in Patent Cases similar to an order promulgated by a subcommittee of the Advisory Council of the Federal Circuit late last year. The new [Model] Order is different in several respects, however. The treatment of email, for example, differs in several important ways, including that the presumptive limitation on the allowable number of custodians is raised from five to eight, that the presumptive limitation on the allowable number of search terms is raised from five to ten, and that the court may consider requests for additional or fewer custodians without limitation. The [Model] Order in the Eastern District of Texas also includes instruction on the production of ESI, including, for example, requiring production in TIFF format and specifying that no party has an obligation to make its production text-searchable unless it already exists in that form or is being converted for use in the litigation, including for use by the producing party’s counsel. The [Model] Order in the Eastern District also limits a party’s obligation to restore backup media absent a showing of good cause and likewise precludes the obligation to collect and preserve voicemails, PDAs, and mobile phones (deemed “not reasonably accessible”) absent the same showing.

Although the rules are effective immediately, comments regarding the amendments will be accepted by the Clerk of Court until Friday, March 23, 2012.

A copy of the General Order Amending Local Rules is available here.

Court Imposes Sanctions for Failure to Conduct Reasonable Inquiry and Late Production

Mar 08 2012

In re Delta/AirTran Baggage Fee Antitrust Litig., —F. Supp. 2d—, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012)

After repeated representations that all responsive documents had been produced, a defendant belatedly discovered and produced an additional 60,000 pages. Upon plaintiffs’ motion for sanctions, the court found that the defendant “did not conduct a reasonable inquiry” to ensure production of all responsive documents and had run “afoul” of Rule 26(e). Accordingly, the court ordered discovery re-opened and that the defendant pay plaintiffs’ reasonable expenses and attorneys’ fees caused by the defendant’s failure, including the cost of the necessary motions and the extended discovery period.

Archive - March 2012