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January 07, 2013

Remanded 'Rambus' Returns to Dismissal Sanction

Shred_me400The hangover from Rambus "shredding party" in the the late 1990s continues for the manufacturer and patentee of dynamic random access memory (DRAM) chips in the U.S. District Court for the District of Delaware.

As reported by Jan Wolfe in Law Technology News' sibling publication The Am Law Litigation Daily, Judge Sue Robinson "tossed a patent case Rambus brought against Micron Technologies Inc. more than a decade ago, concluding that the company deliberately destroyed evidence ahead of its litigation campaign." Mark this as a flashback for Rambus: as Wolfe notes, Robinson four years earlier made the same ruling, reversed by the Federal Circuit in 2011 finding further explanation was warranted due to the severity of the sanction.

Rambus sued Micron for patent infringement of its technology to speed computer memory as a counterclaim to a suit filed by Micron August 28, 2000, seeking decalaratory judgment for non-infringement on the grounds that Rambus' patents were unenforceable and invalid. According to the opinion, Micron's suit was filed in reaction to an email from Rambus CEO Geoff Tate to Micron chief Steve Appleton threatening litigation.

Continue reading "Remanded 'Rambus' Returns to Dismissal Sanction" »

December 07, 2012

Kroll Study Finds Signs of E-Discovery Savvy

Laptop_briefcase400Are in-house and outside counsel in corporate cases getting better at e-discovery?

In a recent article in Corporate Counsel, Sue Reisinger finds good news for corporate attorneys in Kroll Ontrack's yearly analysis of e-discovery opinions, particularly in its numbers on sanctions: they’re down this year, from last. Kroll's numbers are drawn from a selection of 70 state and federal e-discovery cases between January and December 2012, which are summarized, categorized and added to a database of e-discovery case law on Kroll's website.

The numbers on sanctions do look promising, with 32 percent of cases analyzed addressing sanctions for preservation and spoliation issues, noncompliance with court orders, and disputes over production — a 10 percent drop from last year's survey.

As the case breakdown continues in a release from Kroll:
• 29 percent of cases address procedural issues, such as search protocols, cooperation, production and privilege;
• 16 percent address discoverability and admissibility;
• 14 percent of cases discuss cost-shifting or taxing e-discovery costs; and
• 9 percent discuss predictive coding.

Continue reading "Kroll Study Finds Signs of E-Discovery Savvy" »

November 09, 2012

Judge Peck's Decision Not to Recuse Himself Upheld


U.S. District Judge Andrew Carter of the Southern District of New York upheld Magistrate Judge Peck's decision not to recuse himself from the Da Silva Moore, et al. v. Publicis Groupe SA and MSLGroup litigation, Evan Koblentz reports. Plaintiffs had asserted Peck had conflicting interests in the use of predictive coding software due to public statements and appearances favoring the review method.

Read the article on LTN online.

Image by Monica Bay

October 29, 2012

Del. Chancery Court Judge Orders Predictive Coding

Welcome_to_delaware400There is a new predictive coding case in Delaware Court of Chancery that could have a big impact on the attitude of corporate America to technology-assisted review. EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012). This case involves a complex multimillion-dollar commercial indemnity dispute involving the sale of Hooters, a well-known restaurant, famous for its chicken wings, beer, and other things.

The judge hearing the dispute, Vice Chancellor J. Travis Laster, is also well-known, but for something completely different, namely surprise rulings. This case adds to that reputation. He completely surprised the lawyers in this case with a surprise bench ruling that they all use predictive coding and share a common vendor. Here are his exact words:

Continue reading "Del. Chancery Court Judge Orders Predictive Coding" »

August 22, 2012

'Kleen' Comes Clean From Predictive Coding

Code_road_400Plaintiffs in Kleen Products v. Packaging Corp. had sought to force defendants to employ predictive coding technology to ensure the accuracy of document production. Now, in the filing of a stipulation of the parties and an order signed by Judge Nan Nolan, plaintiffs have agreed that keywords can be used to search for documents relevant in electronically stored information collected before October 1, 2013, writes Sean Doherty.

Read the full story on the pages of LTN online.

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August 17, 2012

Predictive Coding Watch: 'In Re: Actos'

Past_present_future400Predictive coding is being put to the test in court again — this time in the Western District of Louisiana. According to a post by Greg Buckles on the eDiscovery Journal, a case management order by Judge Rebecca Doherty frames a "Search Methodology Proof of Concept" to examine the viability of Equivio's predictive coding tool Relevance for review and production in the matter — the defendant's e-discovery provider Epiq Systems uses Equivio Relevance.

The case is In Re: Actos (Pioglitazone) Products Liability Litigation, a multidistrict litigation consolidating 11 civil actions for pretrial proceedings. The plaintiffs allege that Actos, a prescription drug for the treatment of diabetes type 2, increases users' risk of developing bladder cancer — a risk the plaintiffs allege defendants concealed and failed to adequately warn consumers about.

Continue reading "Predictive Coding Watch: 'In Re: Actos'" »

August 02, 2012

Can Courts Get a Grasp on Ephemeral Data?

Hand_sandHow should courts handle requests for data "that require extraordinary measures to preserve and collect?" Brian Esser and Judy Selby of Baker Hostetler examine two recent cases in Tennessee and New York involving the recovery of Internet browser histories, one of which required the services of an expert to create forensic images of a hard drive -- a pretty costly procedure.

Read the article on LTN online and ask yourself what you might do when your duty to preserve extends to temporary Internet files or the recovery of files from a hard drive's slack or unallocated space.

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July 26, 2012

Zubulake Publishes Book on Eponymous Litigation

Zubulakes_e_discovery128As Judge Shira Scheindlin of the Southern District of New York issues another opinion with repercussions for electronic data discovery, Laura Zubulake, the plaintiff from the case that put Scheindlin on the EDD map, has published her own book recounting her experience during Zubulake v. UBS Warburg.

Read Monica Bay's interview with Zubalake on our LTN website.


July 18, 2012

Scheindlin: Strong Opinion on Custodian Self-Collection

Scheindlin_shira"United States District Court Judge Shira Scheindlin has done it again," says Ralph Losey, referring to her Friday release of "another landmark e-discovery decision."

National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement Agency, et al 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012) addresses the adequacy of self-collection by government entities in the context of the Freedom of Information Act.

Read the full story (and download the opinion) here!

Image: Rick Kopstein

Second Circuit Rejects Key Lit Hold Standard, or Does It?

JailFew appellate courts have addressed the consequences of failing to issue a written litigation hold, until the Second Circuit Court of Appeals dove in with its decision in Chin v. The Port Authority, John Jablonski writes in "Second Circuit Rejects Key Litigation Hold Standard," yesterday. 

"Tucked at the end of its 55-page decision, the circuit addresses the question of whether the failure to issue a written litigation hold at the onset of litigation should result in sanctions -- and holds in Chin that the failure to issue a written litigation hold does not equal per se gross negligence. It further held that the district court did not abuse its discretion by denying the motion for sanctions. Has the Second Circuit handed spoliators a 'get out of jail free' card?"

Read more here.

Meanwhile, Legal Hold Pro Alert, in a post by Brad Harris, says it ain't a rejection. Check it out here.

What do you think? Dive on into the comments!


June 22, 2012

Courts Remain Divided on Cell Phone Searches

Police_lights400A Colorado court has continued the split among courts about the ability, under the Fourth Amendment, for police to search cell phones. The case is People v. Taylor, Colo. Court of Appeals, 5th Div. No. 09CA2681 (June 7, 2012).

In Taylor, the police justified the cell phone search of a suspected drug dealer under the "search incident to arrest" exception to the warrant requirement. In brief, under this exception to the Fourth Amendment, police may search any objects in the possession or reach of an arrested person.

Read the full article on LTN online.

Image by dogulove

May 23, 2012

The 24/7 Andrew Peck Show

Greetings from LegalTech West Coast in relatively-smog free and sunny Los Angeles. Day one (Tuesday May 22) was full of energy and standing-room only presentations with, as usual, tons of e-discovery in the seminar rooms (and on the busy exhibit hall floor). It's not too late to stop in for Day 2 (today, May 23); it's at the downtown Westin Bonaventure and one day tickets are available if you want some education, demos, and CLE credits.

Topic A among the L.A. EDD crowd, as expected, is the closely-watched Da Silva Moore case, where U.S. District Court Magistrate Judge Andrew Peck has ordered the use of computer-assisted coding (aka predictive coding). Law Technology News is one of those closely-watching, our most recent story is here.

NelsonOn the blawg-o-sphere, attorney Sharon Nelson, (left) president of Sensei Enterprises, has been monitoring the DSM sideshow in her ride the lightening blog. See her latest post, "Da Silva Moore: EDD's Version of Keeping Up with the Kardashians," is  here.

Peck-5-17-12-bPeck and his Second District colleague Lisa Smith gave a terrific program Thursday evening at the New York City chapter of Women in Discovery -- demonstrating his trademark wit and substantive knowledge. See "Federal Judges Preside Over Women in E-Discovery Meeting."

But Tuesday's LTWC keynote address reminded us that Peck isn't a one-trick pony judge doin' nuttin' but e-discovery 24/7/365. (He did win LTN's 2011 Champion of Technology Award). Peck's turf also has included overseeing another matter that kept lawyers Keynote1chewing their fingernails -- to say nothing of anybody with a dollar in a bank. Kevin Genirs (left). In his keynote address yesterday, "2008 v. 2012: Lessons from the Lehman Brothers," described how Peck oversaw the frantic, sleep-deprived, mega-lawyered transactions under excruciating deadlines that ultimately resulted in the sale of Lehman Brothers ("for the price of our building") to Barclays, praising Peck for recognizing the global impact of the sale on the stability of financial markets, and Peck's non-stop efforts to get the deal consummated. Genirs, who had been general counsel, investment banking, at Lehman's, was one of the 10,000 Lehman workers who had new jobs with Barclays when the sun rose the next day.

Later this morning, check out for my colleague Michael Roach's  report on "Under Fire: Defending and Challenging Technology-Assisted Review," which featured Irell's Tom Werner, O'Melveny's Jeffrey Flower, Oracle's Pallab Chakraborty, and moderator Andrea Gibson, from Kroll Ontrack (the sponsor of the Litigation Technology Track." Yes, DSM and Peck were front-and-center in the discussion!

Meanwhile, you can keep up with all the substance and occasional drama about Peck on our website's home page, and its E-Discovery/Compliance "channel" -- and right here at EDD Update. Onward to Day 2! 

Update 5/24: Oooops. Who knew there were two Judge Pecks in the Southern District of New York! Actually, many -- and Silicon Valley consultant Mark Michels, a member of LTN's editorial advisory board, was the first to advise me that I goofed. It wasn't Andrew Peck, it was Judge James Peck, of the U.S. Bankruptcy Court. But you get my point.

P.S. Here's Michael's story 

Photos: Monica Bay, except for Sharon Nelson (courtesy of ride the lightening)

May 17, 2012

More News on Plaintiffs' Effort to Recuse Peck

Red_clip_papers_400In the latest round of Monique da Silva Moore v. Publicis Groupe and MSLGroup, Magistrate Judge Andrew Peck denied an amicus brief in support of the plaintiffs' motion for his recusal, Sean Dohery writes.

The brief was filed by Richard E. Flamm, a Berkeley, Calif.-based attorney and author of Judicial Disqualification: Recusal and Disqualification of Judges retained by the plaintiffs as an expert witness. Peck denied the motion to file the brief, writing "an alleged amicus brief that is paid for by plaintiffs is hardly necessary or appropriate." Read the full story on LTN online.

For more on the plaintiffs' recusal efforts, read their reply memorandum supporting the motion for recusal (.pdf) and its supporting exhibits (.pdf), filed May 10.

Image by Monica Bay

7th Circuit Holds Cell Phone Videos Are Protected

Chicago_federal_center400Every time a public figure speaks these days, smartphones are there to record the speech.

A key question: Is this legal?

That was the issue addressed last week by the Seventh Circuit Court of Appeals. The case is American Civil Liberties Union of Illinois v. Alvarez, 7th Cir. No. 11-1286 (May 8, 2012).

The court reviewed a challenge to the Illinois eavesdropping statute, which makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent, and includes any oral communication regardless of whether the communication was intended to be private.

In Chicago, citizens had started a "police accountability program," which included plans to openly make audiovisual recordings of police officers performing their duties in public places and –- a fact that makes the statute applicable -- speaking at a volume audible to bystanders. When persons involved in the program feared prosecution, the ACLU challenged the eavesdropping statute on First Amendment grounds on their behalf.

The court held that the statute, in these circumstances, violated the First Amendment.

Read the full article on LTN online.

The image is in the public domain

May 04, 2012

'Da Silva Moore' Defendants Oppose Motion to Recuse

Binary_glasses_man400The defendants in Monique da Silva Moore, et al. v. Publicis Group SA, et al. (Case No. 11-CV-1279), on April 30 filed a formal opposition to the plaintiffs' motion to recuse or disqualify Magistrate Judge Andrew Peck. The defendants ("MSL") have also requested that the court award attorneys' fees and costs incurred in filing their motion.

Read the full article, "Defendants in 'Da Silva Moore' Oppose Motion to Recuse Judge," on LTN online.

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May 02, 2012

Predictive Coding Takes: the Court and the Market

PredictiveResponses to Andrew Carters' recent affirmation of Judge Peck's decision authorizing the use of predictive coding in da Silva Moore continue to roll in.

For more opinions from legal practitioners and industry veterans on what this all means for legal technology, read Evan Koblentz' article for LTN online, "Take Two: Reactions to 'Da Silva Moore' Predictive Coding Order."

In the midst of all the prognostications about machine learning and the discovery process, New York-based litigation support provider Empire Discovery announced its adoption of OrcaTec's Document Decision Suite, highlighting its predictive coding capabilities. OrcaTec's technology is being put to use in the source of last week's other judge's order involving predictive coding, Global Aerospace.

Read about the OrcaTec deal here.

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April 24, 2012

Va. Judge Orders Predictive Coding

In what could be a milestone moment, a state judge in Virginia yesterday ordered that defendants can use predictive coding, despite plaintiff's objections that the technology is not as effective as purely human review.

In Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, Loudoun County Circuit Judge James Chamblin wrote:

Judge"Having heard argument with regard to the Motion of Landow Aviation ... it is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of processing and production of electronically stored information."

Chamblin, in allowing 60 days for processing with "production to follow as soon as practicable and in no more than 60 days," continued:

"This is without prejudice to a receiving party raising with the court an issue as to the completeness of the contents of the production or the ongoing use of predictive coding."

There are many questions to ponder. Will a county court order have any impact on state or federal courts? What about impacting the current predictive coding controversies in the da Silva Moore and Kleen Products cases? Which software companies are involved? Can the plaintiffs take any further appeal action?

Update, 6:20 PM: The full story is now posted on Law Technology News.

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Ohio Court Addresses 4th Amendment, Text Messages

20308702.thmThe question of who can challenge a search of cell phone records was before an Ohio court on Aug. 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl's cell phone records with the consent of her mother.

Notably, the records acquired contained not only the numbers that had been called, but also the content of some text messages that had been exchanged.

The 17-year-old was eventually found living — by her own choice — in an apartment rented by the defendant.

Continue reading "Ohio Court Addresses 4th Amendment, Text Messages" »

April 17, 2012

Speaking of 'Da Silva Moore' — Recusal?

Peck_andrew2_400"The e-discovery dispute in Monique da Silva Moore, et al. v. Publicis Group SA, et al. (Case No. 11-CV-1279), in the U.S. District Court for the Southern District of New York, took one step closer to a reality show on April 13, when plaintiffs filed a formal motion to recuse or disqualify Magistrate Judge Andrew Peck," writes Sean Doherty.

Read the full article, "E-Discovery Dispute Yields Formal Recusal Request in 'Da Silva Moore,'" on LTN online.

Image by Monica Bay

Predictive Coding Watch: ‘Kleen Products’ in Illinois

Speed_checkMeanwhile, back at the ranch ... With all eyes on United States District Court  Magistrate Judge Andrew Peck's orders involving "computer-assisted review" and plaintiffs' challenges in Da Silva Moore in the Southern District of New York, another decision weighing the automated review technology, Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., is quietly playing itself out in the Northern District of Illinois.

As related in a post by Matthew Nelson, senior e-discovery counsel at Symantec, on the e-discovery 2.0 blog, this time out it's the plaintiffs challenging the defendants' discovery methods because they didn't use predictive coding. In a federal antitrust case before Magistrate Judge Nan Nolan, the plaintiffs attorneys are requesting that the defendants redo production. As Nelson describes it the plaintiffs' argument appears to be "that defendants should have used predictive coding to avoid the limitations of keyword search tools." 

Symantec owns Clearwell Systems, and its e-discovery software is being used by at least one of the defendants, according to the transcripts of the first evidentiary hearing in February. With review 99% complete and more than a million documents already produced, Nelson (remember, he's not exactly an disinterested party here) questions the timing of the plaintiffs challenge.

Is this merely a bid by plaintiffs to have the other side pay for the plaintiffs' culling and filtering? With a second hearing completed March 28 and a third day of hearings scheduled, Da Silva Moore isn't the only show running.

For more on the two cases, check out the eDiscovery Journal and the Document Review MD Blog.

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April 11, 2012

11th Circuit on Fifth Amendment & Encryption

Keys_for_sale400Joshua Engel looks at last month's decision by the 11th U.S. Circuit Court of Appeals, United States v. John Doe, for guidance on whether Fifth Amendment privilege guards against the disclosure of passwords and encryption keys by witnesses and suspects.

The 11th Circuit concluded the Fifth Amendment does apply because providing a key or password amounts to an admission the suspect possessed or could access the information in question — child pornography in this case — which amounts to self-incrimination.

Engel identifies two competing doctrines in play in deciding whether Fifth Amendment protections apply, the "act of production" doctrine and the "foregone conlusion" doctrine.

Read the full LTN article, "Can the Government Force the Surrender of Encryption Keys?"

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March 22, 2012

The Technology Is Not the Issue, It's How You Use It

Hammer_eggsThe Da Silva Moore case has generated a lot of e-discovery buzz about the U.S. District Court for the Southern District of New York being the first court to approve technology-assisted review — assuming plaintiffs' rule 72(a) objections are denied.

However, since both parties agreed to use TAR, this case was never about whether or not the technology should be used, it was about protocols. TAR is being used successfully in thousands of cases around the world without judicial intervention; saving parties millions in review cost and time.

So what's the fuss?

Continue reading "The Technology Is Not the Issue, It's How You Use It " »

March 19, 2012

3rd Circuit Issues Race Tires Decision on Taxing EDD Costs

32247070.thbThe 3rd U.S. Circuit Court of Appeals issued its long-awaited decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp on March 16, 2011. The court took a narrow view of whether all the charges imposed by electronic discovery vendors to produce ESI can be taxed against the losing party per the cost-taxation statute, 28 U.S.C. 1920(4).

In short, the court held that only costs of making copies were taxable and that many costs associated with other tasks performed by the e-discovery vendor were not recoverable under the statute.

The court acknowledges that there may be good reasons to award e-discovery costs to a prevailing party; however, the courts lack authority to do so under the cost-taxation statute.

Continue reading "3rd Circuit Issues Race Tires Decision on Taxing EDD Costs" »

March 16, 2012

District Judge Will Hear Objections to Peck's Decision

3942141.thbAs discussed in a previous EDD Update — Ramifications of Judge Peck's New Opinion — U.S. District Judge Andrew L. Carter will have the final say on Peck's e-discovery ruling in the Da Silva Moore case.

Carter just granted plaintiffs' request to file a brief documenting their Rule 72(a) objections based on Peck using outside sources not in evidence for his ruling on predictive coding.

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March 12, 2012

7th Circuit Decision on Warrantless Cell Phone Searches

Smartphone_notify128Judge Richard Posner of the 7th Circuit wrote a very interesting opinion recently addressing the ability of law enforcement to search a cell phone without a warrant. The case is United States v. Abel Flores-Lopez.

Posner noted that "Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a "computer" or not) can be searched without a warrant — for a modern cell phone is a computer."

In this case, the defendant was alleged to be a drug dealer. The defendant had driven a truck containing drugs to the location where he was arrested. After his arrest, the police seized a cell phone from his person and two other cell phones from the truck. Officers searched each cell phone for its telephone number and used that information to subpoena the call records from the service provider.

Continue reading "7th Circuit Decision on Warrantless Cell Phone Searches " »

March 08, 2012

'Zubulake' Gains More Traction in New York Courts

Nys_1st_dept400New York's Appellate Division, 1st Department, again embraced the standards set out in Zubulake in its second major ruling in a month on e-discovery, write Marshall H. Fishman and Dana L. Post in "N.Y. Appellate Division Continues to Press 'Zubulake' EDD Standard."

In GreenPoint, the appeals court held that the producing party should "bear the cost of the searching for, retrieving, and producing documents, including electronically stored information." But it additionally held that lower courts may permit cost-shifting according to the seven factors stated in Zubulake.

The Greenpoint ruling -- in addition to Voom -- would appear to add weight to arguments that Federal standards should govern when it comes to unresolved e-discovery issues under New York law.

Image by Beyond My Ken

February 29, 2012

Is Texting Evidence of Criminal Conduct?

Busy_texting400Is texting evidence of criminal behavior? That was the issue before a federal judge in U.S. v. Dukins, Dist. Court, ED Tennessee 2012.

In Dukins, the defendants faced counterfeiting charges. One of the issues was a stop and frisk of the defendants by the police. The officer noted, among other factors, that "it was significant that the men appeared to be texting because, in her experience, scammers are often texting someone inside or outside the store who is acting as a lookout during the scam."

To review, police may make a brief, investigatory stop (a Terry stop) if the police have specific, articulable facts that gave rise to a "reasonable suspicion" that the suspect was engaged in criminal activity. Reasonable suspicion is determined in light of the "totality of the circumstances."

Continue reading "Is Texting Evidence of Criminal Conduct? " »

February 28, 2012

Cell Phone Tracking Case Illustrates Lack of Clarity

Smartphone_users400A recent case from Arkansas suggests that law enforcement could face liability for improperly tracking locations through cell phones. The case is Trice v. Eversole, Civil No. 11-2073, United States District Court, W.D. Arkansas (Marchsewki, M.J.). In doing so, the court illustrates the lack of clarity presented by the recent Jones decision on GPS tracking.

In Trice, the plaintiff filed a civil case under §1983. The allegations were that a police officer tracked him without a warrant by means of his cell phone. When the plaintiff arrived at an empty house, he alleges that he was "jumped on" by the police and unlawfully arrested.

One of the defendant officers moved to dismiss the case (technically, filing for judgment on the pleadings). The defendant's argument was that no warrant was required to obtain cell phone data. The magistrate judge noted that the courts are divided on whether the "government must show probable cause before it can obtain cell phone location data. American Civil Liberties Union v. U.S. Dept. of Justice, 655 F.3d 1, 12-13 (D.C. Cir. 2011)."

Continue reading "Cell Phone Tracking Case Illustrates Lack of Clarity" »

February 27, 2012

Ramifications of Judge Peck's New Opinion

Binary_suit_400We must remember that decisions of federal magistrate judges carry no weight beyond the U.S. district judge who assigned the matter to them. 

Under Rule 72 (a) of the Federal Rules of Civil Procedure, decisions of a magistrate judge are subject to review and either approval, modification or reversal by a district judge of that court, except in civil cases where the parties consent in advance to allow the magistrate judge to exercise the jurisdiction of the district judge. The last word in the Da Silva Moore case will rest with US district Judge Andrew L. Carter who is assigned the case.

Magistrate decisions by Judges like the Honorable John M Facciola, Honorable Paul Grimm, and Honorable Andrew J. Peck have become the linchpin in the evolution of e-discovery case law. However, it's time to see more U.S. district judges like Shira A. Scheindlin taking the lead in this area.

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February 24, 2012

Hot Off the Press: Judge Peck's Opinion in Da Silva Moore

PeckAndrew-GT11U.S. District Court Magistrate Judge Andrew Peck has just released his opinion in the Da Silva Moore case addressing computer-aided coding.

Read it here: Download DaSilvaMoore 2-24-12 Opinion.

Image: Monica Bay

February 13, 2012

Predicitive Coding in Andrew Peck's Court

Code_white_silhouettes_400In what appears to be the first federal case to adopt the use of predictive coding, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York in Monique Da Silva Moore, et al., v. Publicis Groupe and MSL Group, ordered the parties to adopt a protocol for e-discovery that includes the technology as implemented by Recommind's Axcelerate product.

Paul Neale, CEO of Doar Litigation Consulting and Gene Klimov, vice president of discovery consulting, advised the plaintiffs on developing a protocol for predictive coding that used quality controls by both parties to teach Axcelerate what is relevant and irrelevant through iterative sample sets. Peck agreed that "the [predictive coding] system is only as good as the training that it gets."

See LTN's technology editor Sean Doherty's analysis .

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February 09, 2012

Decisions, Decisions: EDD Cases in 2011

0112ltnp75"Case law has rapidly evolved from the humble pronouncements of just a few technology-savvy federal judges," observes Littler Mendelson shareholder Cecil Lynn III, looking back at e-discovery opinions in 2011

Francisco v. Verizon South, Inc. and Race Tires America, Inc. v. Hoosier Racing Tire Corp. are among a rising number or opinions that address reimbursing the prevailing party's e-discovery costs. Thermal Design, Inc. v. Guardian Building Products, Inc. from the Eastern District of Wisconsin demonstrates judges stressing the need to move away from broad discovery demands towards targeted, more proportional requests.

The recently updated Pippins v. KPMG LLP raised the specter of disproportionate preservation demands and the worry that Southern District of New York Magistrate Judge James Cott's (and now District Court Judge Colleen McMahon's) decision might be misapplied. Other opinions addressed sanctions in the face of egregious misconduct, the production of metadata, and social media discovery.

For the full rundown, read Lynn's article, "The View From the Bench: Opinions on E-Discovery in 2011."

February 06, 2012

Pippins Demonstrates Need for Uniform Preservation Rules

In her Feb. 3, 2012 opinion in Pippins v. KPMG LLP, (S.D. N.Y. No. 11 Civ. 377), District Court Judge Colleen McMahon denied KPMG’s request for relief from its obligation to preserve more than 2,500 hard drives of its former Audit Associates in the overtime wage case, at a cost claimed by KPMG to be $1.5 million or more. The plaintiffs sought relief under the Fair Labor Standards Act and New York law.

KPMG’s failure to provide any information about or access to the drives doomed its argument that the value of the drives was disproportionate to the costs. Without any sense of what the value was of the information on the drives, the court could not undertake any balancing of burden vs. value. As stated by Judge McMahon, “KPMG is hoist on its own petard,” (Op. p. 20). In other words, traditional stonewalling tactics can backfire on a party trying to limit discovery by arguing proportionality; even the slightest cooperation would have put KPMG in a much better position.

If there was a silver lining for those who oppose burdensome preservation obligations, it was that the court stated that, “[P]roportionality is necessarily a factor in determining a party's preservation obligations” (Op. pp. 18-19), thereby siding against those who argue that proportionality governs production but not preservation.

Continue reading "Pippins Demonstrates Need for Uniform Preservation Rules" »

February 03, 2012

KPMG Loses Appeal in Pippins

KPMG has lost its appeal in the controversial Pippins case. Judge McMahon said KPMG must preserve all possible plaintiffs' drives. Full story here.

January 10, 2012

Resolution Talks Fail in 'Pippins v. KPMG' Discovery Agreement

Update, 11:45pm: There won't be a resolution anytime soon. Read the article here.


A possible resolution to the controversial discovery dispute in Pippins v. KPMG, in which KPMG's counsel hoped to communicate with Judge Colleen McMahon yesterday, has not been resolved after all.

The dispute, by now familiar to all in the legal technology tribe, is about how many computer hard drives to evaluate. Pippins' side won a Nov. 2011 ruling by magistrate Judge James Cott in favor of using all available drives, while KPMG appealed to use 100 sampled drives. The decision caused an uproar and KPMG appealed.

Steven Catlett, of Sidley Austin for KPMG, formally asked McMahon for communication by close-of-business yesterday. "The parties have... initiated a discussion as to whether... the parties can reach a resolution of the discovery issue," he wrote in a memo.

However, "There's been no action taken," Catlett told me today, from Chicago. "We're waiting to hear from her."

Pippins' counsel at Outten & Goulden did not respond to requests for comment.

The EDD Update and Law Technology News team will continue following this closely.

- Evan Koblentz

December 14, 2011

3rd Circuit Hears Oral Arguments in Race Tires

MoneyThe Third Circuit Court of Appeals held oral argument on Monday in Race Tires America Inc., v. Hoosier  No. 11-2316 (3rd Cir. 2011) involving e-discovery cost taxation pursuant to 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d)(1). Philip Yannella’s recent LTN article addresses this hot topic and this specific case in Could E-Discovery Taxation Alter Discovery Paradigm?  

On Nov. 28, I reported on another appellate decision, In Re RICOH Company, LTD. Patent Litigation, No. 20-11-1199, (Fed. Cir. November 23, 2011), addressing EDD cost taxation in Federal Circuit Federal Circuit Takes on Database Cost Taxation.

The Third Circuit panel asked wide ranging and insightful questions involving the American Rule requiring each party to pay their own legal fees, cooperation, cost shifting and  cost reasonableness.  While we will have to wait until Third Circuit issues its opinion, you can listen to the argument and form your own opinion as to the direction the court will rule.


December 05, 2011

Interesting Spin on GPS Use

TimeclockAs we await the U.S. Supreme Court's decision in the GPS tracking case, the lower courts continue to struggle with this issue. A recent decision from a New York Appellate Court has an interesting spin on the use of GPS tracking devices. 

The case is In The Matter of Michael A. Cunningham v. New York State Department of Labor. In Cunningham, a 20-year state employee (with a history of misconduct) was being investigated for taking unauthorized absences from work and falsifying time records. Previous attempted to follow the employee after he left work through traditional surveillance had failed, so the investigators obtained help from the New York Office of the Inspector General (“OIG”). The OIG, among other activities, placed a GPS on the employee’s car.  Information obtained from the GPS device helped the OIG to conclude that the employee had submitted false information about hours worked and travel.

Continue reading "Interesting Spin on GPS Use" »

November 28, 2011

Federal Circuit Takes on Database Cost Taxation

Adding to the growing jurisprudence on e-discovery cost taxation, the Court of Appeals for the Federal Circuit issued an opinion finding the taxation of discovery database costs is permissible under 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d)(1). See In Re RICOH Company, LTD. Patent Litigation, No. 20-11-1199, (Fed. Cir. November 23, 2011).

This patent case arises from the Northern District of California and a decision by Chief Judge James Ware awarding certain discovery costs to the plaintiff. The parties in the matter agreed to produce documents in their native form in a database available to the parties.

TaxThe Federal Circuit, applying Ninth Circuit precedent, held that the costs of producing a document electronically can be recoverable under 28 USC § 1920(4) which provides for recovery of “exemplification” costs. It also found persuasive N.D. Cal local rule 54-3(d)(2) which permits taxing the “cost of reproducing disclosure or formal discovery documents when used for any purpose in the case.” 

Continue reading "Federal Circuit Takes on Database Cost Taxation" »

November 25, 2011

GPS Device OK'd in State Worker's Car

GpsJohn Caher reports today in the New York Law Journal that the New York State Inspector General's placement of a GPS tracking device on the private vehicle of a government employee suspected of falsifying attendance records did not violate the employee's rights. But, he notes, the appeals panel was "deeply divided." 

"The Appellate Division, Third Department, which was previously reversed when it upheld the warrantless use of a GPS device to track a criminal suspect, said the electronic surveillance was justified and reasonable in this civil matter because traditional methods, such as following the employee, had been thwarted.

But a two-judge dissent said the government went too far and tracked the employee's movements not only when he was supposed to be working, but when he was on a family vacation."

Read the full story here.


November 18, 2011

Garbage In-Garbage Out

When the leading e-discovery jurists gather for a review of case law developments at the Georgetown Law Advanced eDiscovery Institute it is difficult to pick the most interesting element of the discussion.

However, the panel highlighted a case outside of the EDD mainstream that serves as a cautionary tale for ediscovery professionals. An appellate court bankruptcy decision, In re Taylor, No. 10-2154, (3rd Cir. August 24. 2011), is “an unfortunate example of the ways in which overreliance on computerized processes. . . can lead to attorney misconduct before a court.”

In Taylor, a magistrate judge imposed the bankruptcy equivalent of FRCP 11 sanctions on counsel who filed pleadings containing computer generated information fraught with errors and took no action when the debtors claimed that the data were inaccurate. The district court overturned the magistrate’s decision. The appellate court, in turn, reversed the district court holding that Rule 11 “requires more than a rubber-stamping of the results of an automated process.”

Further the appellate court held that when a lawyer systematically “ignores obvious indications” that the information may be incorrect, the attorney “cannot be said to have made reasonable inquiry” as required by Rule 11.

Taylor’s obvious lesson is that information output from computer systems is only as accurate as the underlying data. Ediscovery professionals rely on numerous “computerized processes” should remember “GIGO,” an acronym that stands for “garbage in-garbage out”. Careful counsel needs to “trust but verify” electronic data accuracy or potentially face misconduct sanctions.

Georgetown EDD Conference Case Law Update

RosenthalLee-GT11The eighth annual Georgetown Law Advanced eDiscovery Institute opened Thursday morning with a fast-paced case law update presented by six of the most well-known jurists in the legal industry: John Facciola (U.S. District Court for the District of Columbia); Lee Rosenthal (U.S. District Court for the Southern PeckAndrew-GT11District of Texas) (right); Andrew Peck (left), Shira Scheindlin, and James Francis (left below) — (all three from the U.S. District Court for the Southern District of New York) — and David Waxse (U.S. District Court for the District of Kansas) (below, with moderator Ron Hedges). Baltimore's Paul Grimm was scheduled to participate, but had a conflict and was unable to attend.

FrancisJames-GT11The almost-two hour session at the Ritz-Carlton in Arlington, Va., covered cases that illustrated a wide range of issues that were in consideration during 2011.

WaxseandHodgesFrancis started with the long-litigated Rambus cases. (Micron Tech, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed .Cir. 2011), and Hynix Semiconductor, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed. Cir. 2011), which addressed the issue of when the duty to preserve kicks in, and what is reasonable anticipation of litigation. Francis described the "shredding parties" that Rambus held that were revealed during the litigation. "In some respects, [Rambus] was an easy case," he observed, because it was so dramatic.

Read more here.

Photos: Monica Bay

November 14, 2011

More on Pippins Decision—Preservation Proportionality

HarddriveAmong the many issues raised by Magistrate Judge James Cott’s decision in Pippins et al v. KPMG, No. 1:11-cv-00377, (S.D.N.Y. Oct. 7, 2011) is the uncertainty in the law regarding preservation, particularly in applying  proportionality principles. 

KPMG had preserved more than 2,500 individual hard drives at a cost exceeding $1.5 million and sought a protective order to reduce the preservation scope or shift some of the preservation costs to the plaintiffs. Central to KPMG’s motion was a proportionality argument. In conflict with Rimkus Consulting Grp., Inc., v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010) and Victor Stanley, Inc.v. Creative Pipe, Inc., 269 F.R.D. 497 ((D. Md. 2010), Cott declined to apply proportionality principles citing Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y.2010).  He  concluded that  "[u]ntil a more precise definition is created by rule," prudence favors retaining all relevant materials. (Citing Orbit One and Zubulake IV, 220 F.R.D. at 218). 

In response, KPMG filed a motion asking Federal District Court Judge Colleen McMahon to set aside or modify the magistrate judge’s order. The U.S. Chamber of Commerce has also filed an amicus brief urging McMahon ot set aside the magistrate’s order. Unless further extensions are granted, briefing will be completed by December 9, 2011. We will likely have to wait until next year to see whether McMahon will take a different view of preservation proportionality.

Continue reading "More on Pippins Decision—Preservation Proportionality" »

November 13, 2011

Pa. Court Upholds $510K Pretrial Costs

In a recent case
in the U.S.D.C. Eastern District of Pennsylvania, Judge Legrome Davis upheld court costs of $510K for pre-trial discovery, mostly e-discovery. Attorney Peter Vaira, of Vaira & Riley, discusses the Aspartame Antitrust Litigation case in The Legal Intelligencer, here.  


November 10, 2011

Supreme Court Arguments in U.S. v. Jones

The Supreme Court heard arguments on Nov. 8, in the GPS tracking case, United States v. Jones. My article is  here.

Magistrate Judge James Cott Ruling Generating Heat

Our former ALM colleague Alison Frankel reports on her "On the Case" blog (Thomson Reuters): "E-discovery ruling in KPMG case: Brace for 'profound' impact."

It's about an EDD order from Magistrate James Cott over how many hard drives must be examined in an uncertified wage-and-hour class action suit against KPMG.  The parties agreed that plaintiffs could use sampling software to limit the amount of data to be preserved, says Frankel, but couldn't agree on sampling criteria and number of drives to include in the sample. 

Amicus briefs are flying.  Here's the Chamber of Commerce brief, courtesy of Littler's Cecil Lynn III: Download Amicus Brief

Check it out Frankel's report  here

Evan Koblentz' 11/14 article here.

Leonard Deutchman 11/11 article  here 

Hat tip: Jeffrey Brandt

November 09, 2011

Update on SCOTUS GPS Arguments

PoliceHere are some of the news reports and resources regarding yesterday's SCOTUS arguments (See also, Joshua Engel post, below):

• Engel's article is here

• "Citing Orwell, Supreme Court Appears Wary of Police GPS Surveillance," by Marcia Coyle, The National Law Journal.

Which Way Privacy?" by Dahlia Lithwick, Slate.

• Supreme Court documents here. Argument transcript

• SCOTUSblog post by Lyle Denniston. 

• The Volokh Conspiracy post by Orin Kerr.

• Cato@Liberty post by Jim Harper. 

• Electronic Frontier Foundation case history  here.

Image: Clipart

November 08, 2011

SCOTUS Arguments Today in U.S. v Jones

The United States Supreme Court is scheduled to hear arguments today in United States v. Jones, 

The court will consider whether the warrantless use of a GPS tracking device on a defendant's vehicle to monitor his movements on public streets violated the Fourth Amendment. The briefs, including 13 amicus briefs, are gathered on Scotusblog. For a little perspective, you can read my take from last year on how James Bond relates to this issue here.  

I will have more when the transcripts are released.

November 07, 2011

Patent Litigation Model E-discovery Order Update

In the LTN article The Elephant in the Patent Courtroom I reported on the model e-discovery order for patent litigation developed by the Federal Circuit Advisory Council's E-Discovery Committee. 

            Judges in three patent cases in the Eastern District of Texas have issued orders with provisions very similar to or incorporating the patent Litigation Model Ediscovery Order terms: Stambler v. Atmos Energy (Case No. 2:10-CV-594)((Judge Everingham), Effectively Illuminated Pathways v Aston Martin Lagonda, (Case No.:6:11cv34 (Judge Love) and Intravisual v Fujitsu (Case No. 2:10cv090) (Judge Folsom). Judge Love has also posted the E-discovery Model Order on his website alerting counsel appearing before him that it is a representative example of an order typically used by him in patent matters. 

            I have heard that the model order is also gaining some traction in Delaware and other patent-heavy jurisdictions.  I will continue to look for cases that adopt the model order. If any readers are aware of any cases that do implement the model order or its provisions, please let me know.

November 04, 2011

Recent Case Law re: ESI

Mark Berman, a partner at Ganfer & Shore, analyzes recent case law regarding electronically stored information, in this article from the New York Law Journal.

October 24, 2011

New Trend: Big Cost Awards for Winners

Winner“Winning isn’t everything, it’s the only thing” —  Examining the new trend towards big e-discovery cost awards for winners

It is now sweeter than ever to be a victor in federal court. That’s because of the hot new trend to award winners their e-discovery costs under 28 U.S.C. §1920(4) and Rule 54(d)(1) FRCP. Courts are now beginning to consider the services of an e-discovery vendor as “the 21st century equivalent of making copies.” CBT Flint Partners, LLC v. Return Path, Inc., 676 F.Supp.2d 1376, 1381 (N.D. Ga. 2009).

The top three cases to look at first in this area area:

•  In re Aspartame Antitrust Litigation, No. 2:06-CV-1732, 2011 (E.D. Penn. Oct. 5, 2011) ($500,000 e-discovery costs award to defendants);

Continue reading "New Trend: Big Cost Awards for Winners" »

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