U.S. Tax Court Addresses the Sufficiency of Production where Predictive Coding is Employed

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“When responding to a document request, technology has rendered the traditional approach to document review impracticable. The traditional method is labor intensive, with people reviewing documents to discern what is (or is not) responsive, with the responsive documents then reviewed for privilege, and with the responsive and non-privileged documents being produced. When reviewing documents in the dozens, hundreds, or low …

Magistrate Judge in the District Court of Kansas Discusses Application of New Proportionality Language to Discovery Disputes

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The plaintiff sought additional electronically-stored information which the defendant claimed was privileged. Rather than deciding the issue based on the existence and/or waiver of the attorney-client privilege, the court focused on the new proportionality language in Rule 26:   “The consideration of proportionality is not new, as it has been part of the federal rules since 1983. Moving the proportionality …

U.S. Magistrate Judge in the Connecticut Declines to Compel Production from Defendant’s Overseas Manufacturer

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In a suit against General Electric regarding alleged defects in GE branded microwaves, the plaintiffs sought to compel GE to produce discovery from Samsung Electrics Co., Ltd. (Samsung Korea), the manufacturer of the microwaves at issue.  Plaintiffs’ motion to compel was denied. “The relationship between GE and Samsung Korea does not evidence GE’s legal entitlement to the documents: they are completely different entities; GE is …

U.S. Magistrate Judge in the District of Utah Compelled Production of Database for Forensic Analysis

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In a patent dispute, the defendant moved for an order compelling Plaintiffs to provide a complete copy of the Microsoft Access database that a co-inventor utilized to input his formulas. “Specifically, Defendant seeks the metadata it alleges is contained in the Microsoft Access database to independently determine the legitimacy of Plaintiffs’ claim that Mr. Steele and his co-inventor were the first …

U.S. Magistrate Judge in the Southern District of Florida Declines to Sanction Party for Failure to Stop Automatic Deletion of Text Messages

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Magistrate Judge William Matthewman, in the Southern District of Florida, declined to sanction a party under the amended version of Rule 37(e) for failing to suspend the automatic deletion of text messages. “While Defendant clearly had an obligation to retain the relevant text messages after this lawsuit was initiated, the Court finds that Defendant simply acted negligently in erasing the …

U.S. Magistrate Judge in the Northern District of California Denies Production of E-Mails from Employees’ GMail Accounts

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In a Robinson-Patman Act case, the defendant, Chrysler, moved to compel the plaintiff, Stevens Creek Dealership, to produce e-mails from employees’ corporate GMail accounts. “Because Stevens Creek does not furnish all its employees with email accounts, many of them use their personal accounts for business purposes. Stevens Creek argues that these accounts are outside its ‘possession, custody, or control,’ so …

District Court in Virgin Islands Calls Into Question the Efficacy of Stipulated Confidentiality Orders

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“In the Stipulated Confidentiality Order, the parties agree that certain categories of documents will be designated as confidential. If documents are so designated, the Stipulated Confidentiality Order requires that ‘if filed, the documents shall be filed under seal and shall remain sealed while in the Office of the Clerk as long as they retain their status as stamped “Confidential” documents.’  …

In Legal Battle Between Tech Giants, Northern District of California Splits Baby on Number of Custodians

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Plaintiff moved to add twenty-two additional custodians for production by the defendant. In ruling, the court stated that both parties failed to fully address the legal standard under Fed. R. Civ. Pro. 26, as the plaintiff did not address the proportionality factors and the defendant did not assert that the information sought was irrelevant or too expensive. The court therefore …

New Federal Rules Effective December 1, 2015

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Effective December 1, 2015: Fed. Rule Civ. Pro. 26(b), governing the general scope of discovery and its limits, has been redefined to include an explicit reference to proportionality, and the factors to be considered: “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 …

Massachusetts Court of Appeal Affirms Sanctions for Discovery Abuses and Spoliation

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In 2000, the plaintiffs retained Haese as litigation counsel. In 2005, Andrew Tine, then an associate with Haese, noticed that billing and time entries had been altered without his knowledge. Tine informed the plaintiff of the billing discrepancies and resigned from the firm. In 2006, the plaintiff filed suit against Haese for overbilling. The computer that stored the billing data …