1 Presenting a live 90-minute webinar with interactive Q&A E-Discovery Strategies: Preparing for New FRCP Amendments on Proportionality and Managing ESI TUESDAY, APRIL 14, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: John J. Isaza, Partner, Rimon, Laguna Beach, Calif. Bree D. Kelly, e-dat Lawyer, K&L Gates, Seattle James S. Kurz, Partner, Redmon Peyton & Braswell, Alexandria, Va. Daniel D. Mauler, Partner, Redmon Peyton & Braswell, Alexandria, Va. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.
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5 E-Discovery Strategies: Preparing for New FRCP Amendments on Proportionality and Managing ESI John J. Isaza Rimon James S. Kurz Redmon Peyton & Braswell Bree D. Kelly K&L Gates Daniel D. Mauler Redmon Peyton & Braswell
6 Proposed Rule 26(b)(1) klgates.com 6
7 Proposed Rule 26(b)(1) Four Elements: 1. Include current Rule 26(b)(2)(C)(iii) factors (Proportionality) 2. Remove unnecessary language regarding the discovery of sources of information 3. Restrict discovery to information relevant to the claims and defenses 4. Rewrite last sentence to clarify (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. klgates.com 7
8 Proportionality The Proposed Rule Would: Make Proportionality an explicit component of the scope of discovery, requiring parties and courts alike to consider them when pursuing discovery and resolving discovery disputes. Add a new factor for consideration: the parties relative access to relevant information The Proposed Rule Would Not: change the existing responsibilities of the court and the parties to consider proportionality place on the party seeking discovery the burden of addressing all proportionality considerations permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional klgates.com 8
9 Identification of Sources Stricken (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). klgates.com 9
10 Eliminate Two-Tiered Discovery The Committee proposes that the reference to broader subject matter discovery, available upon a showing of good cause, be deleted. In the Committee s experience, the subject matter provision is virtually never used, and the proper focus of discovery is on the claims and defenses in the litigation. Report of the Advisory Committee, June 2014 Significantly narrowed scope of discovery Proportional discovery relevant to any party s claim or defense suffices, given a proper understanding of what is relevant to a claim or defense. - Proposed Advisory Committee Note, Rule 26 klgates.com 10
11 Clarify Question of Admissibility OLD: Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. NEW: Information within this scope of discovery need not be admissible in evidence to be discoverable. Despite the original intent of the sentence lawyers and courts continue to cite the reasonably calculated language as defining the scope of discovery. Some even disregard the reference to admissibility, suggesting that any inquiry reasonably calculated to lead to something helpful in the litigation is fair game in discovery. The proposed amendment will eliminate this incorrect reading of Rule 26(b)(1) while preserving the rule that inadmissibility is not a basis for opposing discovery of relevant information. Report of the Advisory Committee, June 2014 klgates.com 11
12 WEBINAR PART I.B Proposed Rule 37(e) 12
13 WEBINAR PART I.B Proposed Rule 37(e) Proposed Rule 37(e) as part of the ediscovery Mosaic The Workings of the Proposed Rule An Emerging ESI Preservation Safe Harbor and the Outlines of a Defensible Preservation Solution The Rule Amendment Process and the Road Ahead 13
14 Proposed Rule 37(e) as Part of the ediscovery Mosaic Rule 1. Scope and Purpose These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. 14
15 Proposed FRCP Rule 37(e) Amendment Process: The Mosaic and Where We Are Today 28 USC Rules Enabling Act The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act. 28 U.S.C Workings of Proposed FRCP Rule 37(e) Advisory Committee Standing Committee Judicial Conference (Sept 16, 2014) Supreme Court (Before May 1,2015) Congress DECEMBER 1, 2015 Amended Rule Effective December 15, 2015 unless Congress enacts legislation to reject, modify or defer pending rule 15
16 Workings of Proposed FRCP Rule 37(e) 16
17 Decision Tree for Proposed Rule 37(e) Subpart (e)(1) Main Body of Proposed Rule Workings of Proposed FRCP Rule 37(e) Subpart (e)(2) 17
18 When Does the Rule Apply? 3-Part Requirements in Body of Proposed Rule 37(e) Text from Body of Proposed Rule: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may: Workings of Proposed FRCP Rule 37(e) Applies only to ESI Only Three Requirements Before Rule Applies Trigger Must be a Duty to Preserve; adopts current law Only if Failed to take Reasonable Steps to Preserve Only if Information Cannot be Restored or Replaced 18
19 Remedies and Sanctions Subpart (e)(1) Prejudice key to Subpart, but burden of proof left open. Committee Note: The rule does not place a burden of proving or disproving prejudice on one party or the other. Courts retain considerable discretion, but may not order most serious sanctions under this Subpart Subpart 37(e)(1) Committee Note: The rule leaves judges with discretion to determine how best to assess prejudice in particular cases. Workings of Proposed FRCP Rule 37(e) 19
20 Remedies and Sanctions Subpart (e)(2) Committee Note: Subdivision (e)(2) limits the ability of courts to draw adverse inferences based on the loss of information in these circumstances, permitting them only when a court finds that the information was lost with the intent to prevent its use in litigation. Workings of Proposed FRCP Rule 37(e) Subpart 37(e)(2) Circuit Split Resolved Committee Note: It rejects cases such as Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence. Court s inherent authority not a basis for ESI Spoliation Sanctions Committee Note: It therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used. The rule does not affect the validity of an independent tort claim for spoliation if state law applies in a case and authorizes the claim. 20
21 2. Committee Note 1. Proposed Rule Text Emerging ESI Preservation Safe Harbor Sedona Conference Commentary on Legal Holds Thomas Allman Conor Crowley Jonathan Redgrave ESI Preservation Safe Harbor Additional Commentary on Reasonable Steps: T. Allman, Proposed Fed.R.Civ.P. 37, BNA Resource Center, Dec. 16,
22 Legally Defensible ESI Preservation System Proof-of-Concept ESI Preservation Management Solution based on 2010 Sedona Legal Hold Commentary Guidelines ESI Preservation Safe Harbor 22
23 Proposed FRCP Rule 37(e) and the Road Ahead Advisory Committee Standing Committee Judicial Conference (Sept 16, 2014) Supreme Court (Before May 1, 2015) Congress DECEMBER 1, 2015 The Road Ahead Amended Rule Effective December 15, 2015 unless Congress enacts legislation to reject, modify or defer pending rule 23
24 Rule 1 Just & Speedy Justice RULE 1 Scope and Purpose [these rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. This means Judges are not the only ones tasked with speedy justice. Lawyers and parties also tasked. rimonlaw.com Rimon, P.C. All Rights Reserved.
25 Amendments Intended to Advance Early Case Management Rule 4(m): Time Limit for Service reduce from 120 days to 90 days Rule 16: Scheduling order to be issued: 90 days after service (down from 120), or 60 days after defendant has appeared (down from 90) Order may provide for the preservation of ESI, and agreements reached under FRE 502 Before moving for an order related to discovery, the movant must request a conference with the court Rule 26 (f) (3) amended in parallel to Rule 16 (b) A discovery plan must include discussion about preservation of ESI and whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502. Proposed Rule 26(d)(1) would allow for service of Rule 34 requests, relating to electronically stored information and tangible things, prior to the parties' Rule 26(f) conference. The time to respond to such early requests would not begin to run until after the Rule 26(f) conference. rimonlaw.com Rimon, P.C. All Rights Reserved.
26 Strategies for Achieving Proportionality klgates.com 26
27 1. Understand the Goal (Proportionality) What is Proportionality? A cost-benefit analysis. FED. R. CIV. P. 1 FED. R. CIV. P. 26(b)(2)(B) FED. R. CIV. P. 26(b)(2)(C)(iii) FED. R. CIV. P. 26(g) The Sedona Conference Commentary on Proportionality (6 Principles of Proportionality) Bottom line: Is the requested discovery worth the burden? Worth $$: consider all factors in 26(b)(2)(C)(iii) klgates.com 27
28 2. Information Governance P 6: Prior Proper Planning Prevents Poor Performance. Data Maps Organizational Charts Document retention/management policies Document retention policies, which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances. Arthur Andersen LLP v. United States, 125 S. Ct. 2129, 2135 (2005) (citation omitted). klgates.com 28
29 3. Cooperation Mancia v. Mayflower Textile Servs., Co., 253 F.R.D. 354 (D. Md. 2008) Rule 26(g) It cannot seriously be disputed that compliance with the spirit and purposes of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot behave responsively during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation. The Sedona Conference, Cooperation Proclamation klgates.com 29
30 4. Targeted Discovery The rationalization for this behavior is that the party propounding Rule 33 and 34 discovery does not know enough information to more narrowly tailor them, but this would not be so if lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost to all parties is proportional to what is at stake in the litigation. Mancia v. Mayflower Textile Servs. Co. Recall, Proposed Rule 26(b)(1) s Reduced Scope of Discovery: What is relevant to the claims and defenses? In 2008, the average number of exhibit pages totaled 4,772, or 0.10 percent of pages produced. Litigation Cost Survey of Major Companies, p. 16 (2010) klgates.com 30
31 5. Phased Discovery Tamburo v. Dworkin, No. 04 C 3317 (N.D. Ill. Nov. 17, 2010) (ordering phased discovery to ensure proportionality in discovery pending determination of Motion to Dismiss) Doyle v. Gonzales, No. CV EFS (E.D. Wash. Feb. 10, 2011) (ordering phased discovery to accommodate defendant city s limited financial and technological resources) Kleen Prods. LLC v. Packaging Corp. of Am., No. 10 C 5711 (N.D. Ill. Sept. 28, 2012) (refusing to order discovery of backup tapes and reasoning that plaintiffs should complete review of already-produced ESI before seeking to have archived backup tapes restored. ) Judge Paul Grimm s Discovery Order (D. Md.): Imposing phased discovery to achieve the goal of proportionality klgates.com 31
32 6. Sampling Extrinsic information and sampling may assist in the analysis of whether requested discovery is sufficiently important to warrant the potential burden or expense of its production. -The Sedona Conference Commentary on Proportionality, Principle 4 To determine the relevance and value of inaccessible information and evaluate good cause for its production, the parties may need some focused discovery, which may include sampling of the sources, to learn more.... FED. R. CIV. P. 26(b)(2) Advisory Committee s note (2006). Soto v. Castlerock Farming & Transp., Inc., 282 F.R.D. 492, (E.D. Cal. 2012) (finding sampling is an appropriate method to relieve the burden imposed upon Defendant and ordering production of a reduced sample in order to minimize the burden but which will still yield meaningful information to Plaintiff. ) klgates.com 32
33 7. Technology Technologies to reduce cost and burden should be considered in the proportionality analysis. -The Sedona Conference Commentary on Proportionality, Principle 6 Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology, such as Technology Assisted Review Judge Paul Grimm s Discovery Order (D. Md.): klgates.com 33
34 34 Records and Information Management
35 Bottom Line Amendments intended to bring focus of litigation back to where it should be: on the merits of the claims and defenses, rather than on discovery sideshows or unfair leverage due to the sheer costs and burdens of unrestricted discovery. Marc Goldich, David Cohen and Emily Dimond. Law 360, FRCP Amendments Could Change Discovery as We Know It (June 4, 2013) rimonlaw.com Rimon, P.C. All Rights Reserved.
36 High Level Practical Effects Set national uniform standard for spoliation Attempt to curb fishing expeditions Lawyer participates in just and speedy justice 4 Four keys: Reasonable steps are key to defense of spoliation Early preparation is key for ediscovery Records Retention Schedule is key in defense of spoliation Intent is key to finding of spoliation and harsh sanctions rimonlaw.com Rimon, P.C. All Rights Reserved.
37 Key #1 Reasonable Steps This combines IG/RIM practices with Legal Holds Were 7 Steps for Legal Holds followed? Judge Scheindlin s prediction there will be litigation over what reasonable steps to preserve data will entail Never defined Recommended good practice define and document in your policies / procedures what those reasonable steps to preserve information are for your organization rimonlaw.com Rimon, P.C. All Rights Reserved.
38 Recommended Information Governance Related Actions Perform an internal self-assessment on how your existing IG, RIM & Lit Support Programs, Policies and Procedures measure up to the changes. Identify and prioritize the gaps that need filling in your IG, RIM & Lit Support Programs. Identify your Executive Champion, garner support and build your business case for the required/necessary program enhancements. rimonlaw.com Rimon, P.C. All Rights Reserved.
39 Specifics to include in your Self-Assessment Must be specific in your production of ESI, both in requests and response to produce. Requests to produce ESI MUST BE relevant and reasonable. Safe Harbor continues; however, sanctions will be awarded to those NOT operating in good faith (barring ill intent) Failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system should help avoid penalties. Bottom line: get your act together in advance. rimonlaw.com Rimon, P.C. All Rights Reserved.
40 Key #2 Early Preparation Early preparation is key Ensure your policies, procedures and processes are updated to address these changes. Test these same policies, procedures and process modifications. Be proactive: take out your etrash with Defensible Deletion before your next litigation rimonlaw.com Rimon, P.C. All Rights Reserved.
41 What is Defensible Deletion? Not all data is created equally! Identify business critical data vs. non-critical data rimonlaw.com Rimon, P.C. All Rights Reserved.
42 What is Defensible Deletion? Not all data is created equally! Identify business critical data vs. non-critical data rimonlaw.com Rimon, P.C. All Rights Reserved.
43 Evaluate Legacy Info in-place Secure, Retain, Discover 3 1 File Intelligence If required? Capture / Archive & Classify 2a Enterprise Retention 2b If not required? Defensibly Dispose Electronic Discovery 4 File Intelligence Crawl, Index, analyze, search, report information repositories in-place Take action upon the discovered information assets Examples: Decommission non-required information in-place, capture & classify records 43
44 Preparing for the Rule 26(f) Meeting Understand your own electronic information systems. Develop a Data Map of all [major] information systems repositories Identify the types and location of relevant information for each case or investigation. This will be included in the Data Map Take immediate steps to preserve said relevant information. Preserve and lock-down in place or migrate to secure server? Identify all persons who might have relevant electronic information (both behind & beyond your fire wall). Determine what electronic information you want from the opponent. Put the opponent on notice of its preservation obligations. rimonlaw.com Rimon, P.C. All Rights Reserved.
45 Meet and Confer Topics Exchange information regarding Information Systems including: type and format of data contained within each system, including employee laptops, desktops, file shares, SharePoint servers, etc. Steps taken and to be taken to preserve information including what is reasonable and unreasonable Any burden (cost) shifting arrangements and what are those thresholds Records management policies including exception processing Form in which information is to be produced: data, media and index Information that will be sought including potential roles of actors Preservation of privilege Safe harbor / claw-back examples rimonlaw.com Rimon, P.C. All Rights Reserved.
46 Key #3 The RRS The Records Retention Schedule takes on greater significance to prevent findings of intent to destroy Litigation holds can be crafted appropriately without fear of repercussions for mere negligence or where a loss of ESI does not prejudice the requesting party. A national uniform standard for spoliation will provide greater predictability when addressing the loss of ESI. rimonlaw.com Rimon, P.C. All Rights Reserved.
47 Key #4 Focus on Intent Judge Scheindlin states The new rule, however, only allows the adverse inference when the party acts with the intent to deprive another party of the information s use in the litigation. ABA Journal, September 2014, page 53. rimonlaw.com Rimon, P.C. All Rights Reserved.
48 Impact How will the changes to Rule 37(e) impact possible sanctions against a party who fails to preserve ESI? Court-imposed actions Preclusion case-ending Cost shifting monetary fines Special jury instructions The court may: (1) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice. rimonlaw.com Rimon, P.C. All Rights Reserved.
49 Impact (cont d.) More limited scope of discovery Stronger framework in which litigants navigate preservation obligations Should make IG support easier Aggressively rein in a discovery process Many believe out of control in too many cases rimonlaw.com Rimon, P.C. All Rights Reserved.
50 Case Law Update: Court Decisions Addressing Proportionality rpb- 50
51 Case Law Update Guidance from the Supreme Court Crawford-El v. Britton, 523 U.S. 574, 598 (1998) Under previous version of Proportionality Rule, the Supreme Court notes that Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery. U.S. v. Jicarilla Apache Nation, 131 S. Ct (2011) (Sotomayor, J., dissenting) See Fed. Rule Civ. Proc. 26(b)(2)(C) (authorizing courts to set limits on discovery based on equitable concerns). rpb- 51
52 Case Law Update (Cont d) Green v. Life Ins. Co. of N. Am., 754 F.3d 324 (5th Cir. 2014) We have instructed district courts to monitor discovery closely in ERISA cases and to limit discovery if the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case,... and [inter alia] the importance of the discovery in resolving the issues. Plaintiff sought discovery that would require defendant insurance company to review approximately 25,000 claims. The District Court limited the discovery to claims within the past 3 years that involved interpretation of a specific paragraph in an insurance policy. The District Court also barred discovery of outdated versions of the policy as irrelevant under ERISA. The Fifth Circuit affirmed the District Court. rpb- 52
53 Case Law Update (Cont d) Gabriel Tech. Corp. v. Qualcomm Inc., 560 Fed. Appx. 966 (Fed. Cir. 2014) In case brought under California s version of the Uniform Trade Secrets Act, the Federal Circuit affirmed the District Court s decision to restrict discovery after the plaintiffs failed to describe their trade secrets with sufficient particularity. The Federal Circuit recited the language from Fed. R. Civ. P. 26(b)(2)(C)(iii) and noted that although the plaintiffs were given multiple opportunities to specifically identify the trade secrets purportedly pilfered by the Qualcomm defendants, their trade secret designations were ultimately condemned to intolerable vagueness... Because the Gabriel plaintiffs failed to identify their trade secrets with reasonable particularity, the trial court appropriately restricted discovery on their misappropriation claims. rpb- 53
54 Case Law Update (Cont d) Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014) Standard of Review: Abuse of Discretion Sixth Circuit affirms District Court decision that barred a plaintiff from seeking discovery of third-parties (two firefighters formerly employed by defendant who suffered from a similar ailment as plaintiff) due to the extensive investigation that both parties would make into medical history of the third-parties. The district court s conclusion that Rorrer s requested discovery would create a burden or expense... [that would] outweigh its likely benefits was not unreasonable. rpb- 54
55 Case Law Update (Cont d) Cascade Yarns, Inc. v. Knitting Fever, Inc., 755 F.3d 55 (1st Cir. 2014) Yarn manufacturer brought action against other manufacturer, alleging defendant made false representations about the cashmere content of its yarns. Plaintiff served third-party subpoena on nonprofit trade association seeking documents related to confidential fiber testing program. Nonprofit produced some redacted documents, but Plaintiff was unsatisfied. District Court denied Plaintiff s motion to enforce the subpoena. First Circuit focused on fact that the third-party was a stranger to the underlying litigation, and then invoked the Proportionality Rule to affirm the District Court. The First Circuit also dived into the facts of the nonprofit s testing procedures, specifically that the tests are merely preliminary scans of fiber content of the submitted yarn samples. The court concluded that the plaintiff s interest in the contested discovery... was slim compared to the burdens on the third-party. rpb- 55
56 Case Law Update (Cont d) Pettit v. U.S., 2:13-cv-253, 2014 WL (N.D. Ind. Aug. 22, 2014) Court relied upon Fed. R. Civ. P. 26(b)(2)(C)(iii) to deny Plaintiff s request to extend discovery deadlines to allow new interrogatories to Defendant because the interrogatories were only tangentially related to the issues of liability and damages in the case. Plaintiff, a veteran, alleged medical malpractice at a hospital administered by the VA. Plaintiff s interrogatories asked whether the VA s computer system contained evidence that a VA doctor had informed the plaintiff of an adverse [health] event, despite testimony already in the record that the plaintiff s son was informed by the VA of the adverse event. rpb- 56
57 Case Law Update (Cont d) O Daniel v. Hartford Life Ins. Co., Civ , 2013 WL (D. S. D. Jan. 15, 2013) Good analysis of Fed. R. Civ. P. 26(b)(2)(C)(iii) in context of plaintiff s document requests to defendant insurance companies. Court ruled the requests were reasonable in light of plaintiff s counsel s narrow targeting of document categories and his proposal for defendants to first produce an index of responsive documents. In asserting its overly burdensome argument, defendants provide the court with little factual support for their position. Nothing is demonstrated as to the number of documents responsive to the request, the form in which they are stored, the ease or difficulty of accessing them, or the estimated man hours that will be required to retrieve and produce the documents. Defendants merely state generally that their relationship with [a third-party company] is complex and encompassed in separate agreements that address a myriad of issues concerning the relationships of the parties, including compensation, reinsurance, privacy policies, dispute resolution, confidentiality, the identification of various duties, and everything in between. rpb- 57
58 Case Law Update (Cont d) Apple, Inc. v. Samsung Elec. Co. Ltd., 12-CV-0630, 2013 WL (N.D. Cal. Aug. 14, 2013) Short and pithy opinion (4 pages). After expert reports were served, Samsung served additional discovery on Apple seeking detailed financial reports about iphone/ipad sales in the US broken down by model category. Apple objected and Samsung claimed the information was needed for its expert witnesses even though its experts had already submitted their reports. But there is an additional, more persuasive reason to limit Apple s production the court is required to limit discovery if the burden or expense of the proposed discovery outweighs its likely benefit. This is the essence of proportionality an all-to-often ignored discovery principle. Because the parties have already submitted their expert damages reports, the financial documents would be of limited value to Samsung at this point... It seems, well, senseless to require Apple to go to great lengths to produce data that Samsung is able to do without. This the court will not do. rpb- 58
59 Case Law Update (Cont d) Finjan, Inc. v. Blue Coat Sys., Inc., 5:13-cv-03999, 2014 WL (N. D. Cal. Oct. 17, 2014) Short and pithy opinion (3 pages). In a patent infringement suit, plaintiff sought discovery on defendant s 1) foreign sales and 2) valuation as a whole entity. Court relied upon Fed. R. Civ. P. 26(b)(2)(C)(iii) to refuse the discovery. To be clear, by precluding discovery on foreign sales, the court is relying on the fact that [Defendant] Blue Coat cannot be held liable under United States patent law for extraterritorial activity. As for Blue Coat s valuation as a whole, the Federal Circuit has now made it clear that such evidence is inadmissible. rpb- 59
60 Case Law Update (Cont d) Bannick v. Kennecott Utah Copper Mine, LLC, 2:13-cv-370, 2014 WL (D. Utah May 6, 2014) Court relies upon Fed. R. Civ. P. 26(b)(2)(C)(iii) to deny plaintiff s request for additional depositions beyond the 10 already permitted in the Rule 16(b) scheduling order. In the court's view, this case is not complex enough to justify the number of additional depositions sought by Plaintiff. Further, even if the court assumes that all but one of the additional depositions will last only thirty minutes to one hour each, which Plaintiff has not conclusively established, Defendant will still be required to incur the significant expense of having its counsel prepare for and attend each of the additional depositions. The court concludes that said burden outweighs the likely benefit of the additional depositions. Plaintiff is still free to interview any of the additional deponents. Such a process is surprisingly simple, cost-effective, and done routinely. Further, interviews do not require court approval or Defendant's participation. rpb- 60
61 Case Law Update (Cont d) Dibbern v. Univ. of Michigan, No , 2015 WL (E.D. Mich. Apr. 1, 2015) Plaintiff, a former student of the University of Michigan, asserted sexual harassment and discrimination claims against the University that arose due to actions of another student. Plaintiff sought discovery of identities of other students who had submitted reports of sexual harassment to the University. Court cited Fed. R. Civ. P. 26(b)(2)(C) and denied the plaintiff s request because it was not relevant to her claim. The Court focused on the elements of what the plaintiff must prove to prevail on her claim, specifically that the University ignored her own complaint. It appears that Plaintiff will only have to prove that the Defendants were deliberately indifferent to her reports of harassment, making discovery concerning others reports of harassment irrelevant. rpb- 61
62 Bree Kelly Bree Kelly is a lawyer in the e-discovery Analysis and Technology (e-dat) Group at K&L Gates and advises clients of all sizes on a variety of records management and electronic discovery issues. Since September 2008, Bree has served as the editor and primary author of K&L Gates Electronic Discovery Law blog and is a frequent writer and speaker on e-discovery and records management. Phone: Visit our Blog: klgates.com 62
63 James S. Kurz Redmon, Peyton, & Braswell LLP Alexandria, Virginia 63
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Electronic Discovery Spring 2014 In this Issue 1 Proposed Updates to the Federal Rules of Civil Procedure Address Proportionality and Sanctions 3 Spoliation of Social Media Evidence 4 Predictive Coding