E-Discovery Strategies:
Preparing for New FRCP Amendments
on Proportionality and Managing ESI
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TUESDAY, APRIL 14, 2015
Presenting a live 90-minute webinar with interactive Q&A
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.
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E-Discovery Strategies: Preparing for
New FRCP Amendments on
Proportionality and Managing ESI
John J. Isaza Rimon
Bree D. Kelly K&L Gates
James S. Kurz
Redmon Peyton & Braswell Daniel D. Mauler
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
klgates.com 7
(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.
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”
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 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. — 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).
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 26Clarify 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 2014WEBINAR PART I.B
Proposed Rule 37(e)
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
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.
Proposed FRCP Rule
37(e)
Amendment Process:
The Mosaic and Where
We Are Today
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
28 USC 2071-2077 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. 2071-2077.
15
Workings of Proposed FRCP Rule 37(e)
Workings of
Proposed
Main Body of Proposed Rule Subpart (e)(1) Subpart (e)(2) 17
Decision Tree for
Proposed Rule
37(e)
Workings of Proposed FRCP Rule 37(e)
When
Does the Rule Apply?
3-Part Requirements in Body of Proposed
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
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:
Remedies and Sanctions—
Subpart (e)(1)
Subpart 37(e)(1) 19 • “Prejudice” key toSubpart, but burden of proof left open.
• Courts retain considerable
discretion, but may not order most serious
sanctions under this Subpart
Committee Note: The rule does
not place a burden of proving or disproving prejudice on one party or the other.
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)
Subpart 37(e)(2)
• Circuit Split Resolved
• Court’s “inherent authority” not a basis for ESI
Spoliation Sanctions
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.
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.
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.
Remedies and Sanctions—
Subpart (e)(2
)
Emerging ESI
Preservation
Safe Harbor
2. Committee Note 3. 2010 Sedona Conference Commentary on Legal Holds Thomas Allman Conor Crowley Jonathan Redgrave 1. Proposed Rule Text21 Additional Commentary on Reasonable Steps:
T. Allman, Proposed Fed.R.Civ.P. 37, BNA Resource Center, Dec. 16, 2014
Proof-of-Concept
ESI Preservation Management Solution based on 2010
Sedona Legal Hold
Commentary Guidelines
www.RPB-law.com
Legally Defensible ESI Preservation System
Proposed
FRCP Rule 37(e)
and the Road
Ahead
23
The Road Ahead
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
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.
Rule 1 – Just & Speedy Justice
This means…
Judges are not the only ones
tasked with speedy justice.
rimonlaw.com © 2009-2014 Rimon, P.C. All Rights Reserved.
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.
25
Amendments Intended to
1. Understand the Goal (Proportionality)
What is Proportionality? A cost-benefit analysis.
F
ED. R. C
IV. P. 1
F
ED. R. C
IV. P. 26(b)(2)(B)
F
ED. R. C
IV. P. 26(b)(2)(C)(iii)
F
ED. R. C
IV. 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)
2. Information Governance
P
6:P
rior
P
roper
P
lanning
P
revents
P
oor
P
erformance.
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).
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
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)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-10-0030-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
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, 503-504
(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.”)
7. Technology
“Technologies to reduce cost and burden should be considered in
the proportionality analysis.”
-The Sedona Conference® Commentary onProportionality, 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’sDiscovery Order (D. Md.):
rimonlaw.com 35 © 2009-2014 Rimon, P.C. All Rights Reserved.
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)
High Level Practical Effects
Set national uniform standard for spoliation
1
Attempt to curb fishing expeditions
2
Lawyer participates in just and speedy justice
3
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 37 © 2009-2014 Rimon, P.C. All Rights Reserved.
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
•
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.
Recommended Information
Governance Related Actions
rimonlaw.com © 2009-2014 Rimon, P.C. All Rights Reserved.
•
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.
Specifics to include in your Self-Assessment
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 © 2009-2014 Rimon, P.C. All Rights Reserved.
What is Defensible Deletion?
Identify business critical data vs. non-critical data Not all data is created equally!
What is Defensible Deletion?
Identify business critical data vs. non-critical data Not all data is created equally!
File
Intelligence
Secure, Retain, Discover
Enterprise Retention If required? Capture / Archive & Classify File Intelligence
2a
1
3
Evaluate Legacy
Info in-place
Electronic Discovery• 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
4
If not required? Defensibly Dispose2b
43•
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 © 2009-2014 Rimon, P.C. All Rights Reserved.
Exchange information regarding
45
Meet and Confer Topics
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
Key #3 – The RRS
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.
The Records Retention Schedule takes on greater significance to
prevent findings of intent to destroy
rimonlaw.com 47 © 2009-2014 Rimon, P.C. All Rights Reserved.
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.”
How will the changes to Rule 37(e) impact possible sanctions
against a party who fails to preserve ESI?
Impact
Court-imposed actions
Cost shifting monetary fines 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.
Special jury instructions
rimonlaw.com © 2009-2014 Rimon, P.C. All Rights Reserved.
• 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
Impact (cont’d.)
Case Law Update: Court Decisions
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. 2313 (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-law.com
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.
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-law.com
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
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-law.com
Case Law Update (Cont’d)
Pettit v. U.S., 2:13-cv-253, 2014 WL 4185389 (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.”
Case Law Update (Cont’d)
O’Daniel v. Hartford Life Ins. Co., Civ. 11-5088, 2013 WL 164225
(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-law.com
Case Law Update (Cont’d)
Apple, Inc. v. Samsung Elec. Co. Ltd., 12-CV-0630, 2013 WL 4426512
(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.”
Case Law Update (Cont’d)
Finjan, Inc. v. Blue Coat Sys., Inc., 5:13-cv-03999, 2014 WL
5321095 (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-law.com
Case Law Update (Cont’d)
Bannick v. Kennecott Utah Copper Mine, LLC, 2:13-cv-370, 2014 WL
1795200 (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,
Case Law Update (Cont’d)
Dibbern v. Univ. of Michigan, No. 12-15632, 2015 WL 1510411
(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.”
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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 primaryauthor of K&L Gates’ Electronic Discovery Law blog— www.ediscoverylaw.com—and is a frequent writer and speaker on e-discovery and records management.
Phone: 206.370.6604
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