2012 – Page 28 – Electronic Discovery Law

N.D. California Court Declines to Follow Race Tires, Allows Taxation of e-Discovery Costs

May 02 2012

In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012)

Plaintiffs moved for review of the clerk’s taxation of costs, including those related to electronic discovery. Noting the recent decision of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp, which narrowly interpreted 28 U.S.C. § 1920(4) and which vacated a lower court’s approval of many costs related to electronic discovery, the California court nonetheless declined to disallow the costs related to electronic discovery in this case:

Defendant Files Response to Plaintiffs’ Motion for Recusal

May 02 2012

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

On Monday, Defendant MSL Group Americas, Inc. filed its response in opposition to Plaintiffs’ Motion for Recusal or Disqualification. Those pleadings are available below.

Criminal Defendant has No Standing to Quash Twitter Subpoena

May 01 2012

People v. Harris, —N.Y.S.2d—, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)

In this case, the court held that the defendant did not have standing to move to quash a subpoena seeking production of his Tweets and the user information associated with his Twitter account because the defendant “had no proprietary interests” in the information sought and because his claimed privacy interest was “understandable” but “without merit.”

District Court Judge Adopts Orders Approving Use of Predictive Coding, Denies Plaintiffs’ Objections

Apr 26 2012

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Apr. 25, 2012)

In a much anticipated opinion, District Court Judge Andrew L. Carter, Jr. has denied the objections of Plaintiffs and upheld Magistrate Judge Peck’s orders approving Defendant’s use of predictive coding to review its own documents and adopting Defendant’s proposed protocol.

Virginia State Court Judge Allows Defendants to Use Predictive Coding

Apr 25 2012

Global Aerospace, Inc. v. Landow Aviation, L.P., No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012)

In this Virginia state court case, the defendants asked to be allowed to use predictive coding for the processing and production of their own ESI. The Loudon County Circuit Judge granted the request, and "allowed" the defendants to use predictive coding, subject to objections plaintiffs may want to raise once they obtain the resulting production from the defendants. The Virginia court’s one-paragraph order states, in its substantive entirety:

Having heard argument . . . it is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of the processing and production of electronically stored information, with processing to be completed within 60 days and production to follow as soon as practicable and in no more than 60 days. This is without prejudice to a receiving party raising with the Court an issue as to completeness or the contents of the production or the ongoing use of predictive coding.

A copy of defendants’ motion for a protective order to allow predictive coding is available here.

A copy of plaintiffs’ opposition to defendants’ motion for a protective order is available here. (Exhibits to this opposition are not currently available.)

A copy of the court’s order granting defendants’ motion is available here.

Court Orders Mirror-Imaging of Personal Computers for Purpose of Preservation

Apr 17 2012

United Factory Furniture Corp. v. Alterwitz, No. 2:12-cv-00059-KJD-VCF, 2012 WL 1155741 (D. Nev. Apr. 6, 2012)

Here, the court granted plaintiff’s motion to compel mirror-imaging of defendants’ personal computers for the purpose of preservation where plaintiff alleged that defendants had wrongfully accessed its computer systems using the personal computers at issue, where plaintiff asserted that defendants’ ongoing use of the computers would result in the loss of relevant data, and where the court determined that in light of the circumstances of the case (and following analysis of the relevant factors) the need for mirror-imaging outweighed the burden.

Plaintiffs File Formal Motion for Recusal or Disqualification in Da Silva Moore

Apr 17 2012

On Friday April 13, 2012, Plaintiffs in this matter filed a formal motion for recusal or disqualification, following up on their prior, informal request for the same.

• A copy of the Notice of Motion for Recusal or Disqualification is available here.
• A copy of the Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification is available here.
• A copy of the Declaration of Steven L. Wittels in Support of Plaintiffs’ Motion for Recusal or Disqualification (without exhibits attached) is available here. Exhibits are available on PACER (http://www.pacer.gov/)

More in Da Silva Moore: Magistrate Judge Peck Responds to Request for Recusal

Apr 04 2012

On Monday, Magistrate Judge Andrew Peck issued an order in response to Plaintiffs’ request for his recusal, which, according to Judge Peck, was contained in a letter dated March 28, 2012 (and is not publicly available at this time).

A copy of the order is available here.

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.

Archive - 2012