order

Efficient E-Discovery: How Will Model Order Impact Eastern District Practice? | Texas Lawyer

November 28, 2011 By Global EDD Group Leave a Comment

In September, the Advisory Council for the U.S. Court of Appeals for the Federal Circuit issued a model order that limits electronic discovery in patent litigation. The Eastern District of Texas judges plan to meet in February to discuss the model order, but lawyers already have followed its guidance in several cases pending in the patent-heavy district.

U.S. Magistrate Judge John Love of Tyler has granted an order limiting e-discovery in at least one case pending in his court based on the model order.

In general, the model order limits parties requesting electronic discovery to a total of five search terms per custodian party. The parties jointly may agree to modify this limit without the court’s leave.

But if a party serves production requests with search terms beyond the limits agreed to by the parties or granted by the court, the requesting party must “bear all reasonable costs caused by such additional discovery.”

“Our objective was to bring efficiency and reasonableness to the expensive discovery process,” say Randall Rader, chief judge of the U.S. Court of Appeals for the Federal Circuit. And he’s pleased that some lawyers in the Eastern District are using the model order as a template for handling discovery in patent cases.

U.S. District Judge Leonard Davis of Tyler, who will become the chief judge of the Eastern District next year, says the judges in the district will discuss a committee report on the model order at their February meeting.

Davis says, “I think [Judge Rader has] raised a very legitimate concern, primarily around the cost of email production. The question is: What is the best way to reduce that but at the same time give people the discovery that they need?”

via Texas Lawyer – Efficient E-Discovery: How Will Model Order Impact Eastern District Practice?.

Filed Under: From The News Tagged With: Advisory Council for the U.S. Court of Appeals for the Federal Circuit, Circuit, Court, District Judge Leonard Davis, electronic discovery, impact, model, order, Will Model Order Impact Eastern District Practice

TAMING THE E-DISCOVERY BEAST : IP Legal Watch

November 25, 2011 By Global EDD Group Leave a Comment

The Federal Circuit’s proposed Model Order on E-Discovery offers a number of good suggestions that should help reduce the burden of electronic discovery in patent cases, and some that merit further consideration and debate. Among the best ideas are the following three:

1. Requiring separate requests for email, rather than permitting email to be included in requests such as “all documents and electronic information” (¶6). This will sharpen the focus on just what types of email communications are relevant. We should consider whether all types of electronic information should be requested separately, and indeed whether to require that specific types of “documents” (correspondence, memoranda, drawings, etc.) should be specifically requested rather than encompassed with omnibus terms.

2. Limiting the metadata parties are required to produce to that revealing times of sending and receipt and the distribution list (¶5). There are times when creation and edit dates are important, so perhaps that also should be included. Most other metadata is typically irrelevant.

3. Presumptive limits of 5 custodians and 5 search terms (¶¶ 10-11). Those limits obviously will not be suitable in all cases, but at least we have a low-number starting point. The suggestions about how to treat conjunctive and disjunctive combinations of terms, and encouragement of the use of narrowing search criteria, are excellent.

via TAMING THE E-DISCOVERY BEAST : IP Legal Watch.

Filed Under: From The News Tagged With: Circuit, electronic discovery, electronic information, information, Legal, model, order, patent cases, search terms

Court Orders Monetary Sanction of $250,000, that Defendant Provide the Court’s Order to Plaintiffs in All Cases, and that Defendant File the Order in Every Case for 5 Years : Electronic Discovery Law

March 30, 2011 By Global EDD Group Leave a Comment

Green v. Blitz U.S.A., No. 2:07-CV-372 (TJW), 2011 WL 806011 (E.D. Tex. Mar. 1, 2011)

Plaintiff sought to re-open her lawsuit or for the court to sanction defendant, despite prior settlement, upon learning that defendant had failed to produce highly relevant documents. Finding that defendant had committed discovery abuses, including failing to disclose relevant evidence and failing to issue a litigation hold, the court ordered defendant to pay plaintiff $250,000, to provide a copy of the court’s order to plaintiffs “in every lawsuit proceeding against it” for the past two years and to file the court’s order in every case that defendant is involved in for the next 5 years.

Plaintiff brought suit alleging that a gas can manufactured by the defendant resulted in the death of Brody Green. One of her major theories of liability was that the gas can had no flame arrester. The defense asserted that no flame arrester was included on the gas can because flame arresters are ineffective. Prior to conclusion of trial, the parties entered into a high-low settlement agreement. Thereafter, the jury returned a verdict in plaintiff’s favor which resulted in a settlement figure at the low end of the high-low range.

Counsel for plaintiff was involved in related litigation. In the course of discovery in that case (and after the present case had closed), counsel learned of “extremely relevant and material” documents that were not produced to plaintiff and filed a motion to re-open the case and for sanctions. Specifically, plaintiff argued that the Court’s Discovery Order required production of all relevant evidence and that defendant’s failure to do so violated the order. Plaintiff further alleged that the defendant’s discovery violations were in bad faith and that had the documents been disclosed, the outcome of her trial would have been different.

via Court Orders Monetary Sanction of $250,000, that Defendant Provide the Court’s Order to Plaintiffs in All Cases, and that Defendant File the Order in Every Case for 5 Years : Electronic Discovery Law.

Filed Under: From The News Tagged With: discovery law, Electronic, electronic discovery, file, flame arrester, flame arresters, Monetary, monetary sanction, order, plaintiff

Court Orders Production of Backup Tapes Pursuant to Order of Non-Waiver Under Rule 502(d) : Electronic Discovery Law

December 15, 2010 By Global EDD Group Leave a Comment

Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)

Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff. Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*

In the course of discovery, disagreement arose regarding the production of ESI on backup tapes. The court proposed production of the tapes subject to an order under Rule 502(d) which would preserve defendant’s claims of privilege. Plaintiff objected, arguing that the defendant “should be required to search its own ESI and produce discoverable materials — just as [plaintiff] did — and that the burden and cost of doing so should not be shifted.” Specifically, plaintiff argued that “(i) the College should bear its own cost of production; (ii) the College has not met its burden of showing that producing the [ESI on backup tapes] would create an undue burden; (iii) producing the [backup tapes] violates rule 34(b)(2)(E) of the Federal Rules of Civil Procedure; (iv) producing all the [backup tapes] amounts to an impermissible “data dump”; and (v) rule 502 is not a cost-shifting tool.”

The court addressed each of plaintiff’s arguments in turn and ultimately rejected each. Responding to plaintiff’s argument that such an order constituted cost-shifting, the court reasoned that it did not, because defendant would bear the cost of producing the backup tapes and must produce all of its ESI. The court recognized that by ordering defendant to turn over the tapes unreviewed, it was “in effect forcing [Plaintiff] to bear the costs of that review if it wants certain data,” but reasoned that “[s]uch a protective order is not . . . a traditional cost-shifting order.”

via Court Orders Production of Backup Tapes Pursuant to Order of Non-Waiver Under Rule 502(d) : Electronic Discovery Law.

Filed Under: From The News Tagged With: backup tapes, discovery law, Electronic, electronic discovery, ESI, federal rules of civil procedure, order, plaintiff, Pursuant, Waiver

Military bans disks, threatens courts-martial to stop new leaks – CNN.com

December 10, 2010 By Global EDD Group Leave a Comment

It’s too late to stop WikiLeaks from publishing thousands more classified documents, nabbed from the Pentagon’s secret network.

But the U.S. military is telling its troops to stop using CDs, DVDs, thumb drives and every other form of removable media — or risk a court martial.

Maj. Gen. Richard Webber, commander of Air Force Network Operations, issued the December 3 “Cyber Control Order” — obtained by Danger Room — which directs airmen to “immediately cease use of removable media on all systems, servers, and stand alone machines residing on SIPRNET,” the Defense Department’s secret network.

Similar directives have gone out to the military’s other branches.

“Unauthorized data transfers routinely occur on classified networks using removable media and are a method the insider threat uses to exploit classified information. To mitigate the activity, all Air Force organizations must immediately suspend all SIPRNET data transfer activities on removable media,” the order adds.

It’s one of a number of moves the Defense Department is making to prevent further disclosures of secret information in the wake of the WikiLeaks document dumps.

Pfc. Bradley Manning says he downloaded hundreds of thousands of files from SIPRNET to a CD marked “Lady Gaga” before giving the files to WikiLeaks.

via Military bans disks, threatens courts-martial to stop new leaks – CNN.com.

Filed Under: Tech Bytes Tagged With: air, air force organizations, com, DVDs, information, insider threat, lady gaga, order, richard webber, thumb drives

Dissent to Order Adopting Mandatory Meet and Confer Rule Highlights Tension in Addressing Cost and Efficiency in E-Discovery : Electronic Discovery Law

December 3, 2010 By Global EDD Group Leave a Comment

In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010)

On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting an amendment to Wis. Stat. § 804.01 prohibiting parties from engaging in electronic discovery until after the parties confer regarding several specified issues. The rule states that “[n]o party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court …” The mandated issues for discussion include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of the proposed discovery and the extent to which such costs shall be limited, among other things. If a party fails to participate or if agreement cannot be reached, judicial intervention may be sought. The purpose of such a rule, as expressed in its attendant note, is to “manage the costs of the discovery of electronically stored information.”

The amendment was adopted despite a strong dissent which expressed the concern that such a mandate “has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation.” The dissent reviewed the Judicial Council’s recommendation which reasoned that unlike the federal courts, Wisconsin state courts “do not have many cases involving a large number of documents and electronic discovery disputes” and that such a rule would “impose ‘significant added burden on litigants while yielding little benefit.’” Additionally, the dissent cited the Seventh Circuit’s ongoing electronic discovery pilot program and the report on phase one of that program which indicated that “a majority of attorneys who responded to a survey opined that the principles underpinning the new federal rules, which included a mandatory meet and confer, neither enhanced nor increased efficiency” and expressed its agreement that the newly adopted rule “has the potential to diminish” both fairness and efficiency. Specifically, the dissent asserted that “[a] mandate to confer can diminish fairness if used as a sword against unrepresented litigants” and that “[i]t has the potential to decrease efficiency by spawning satellite litigation regarding compliance issues.”

via Dissent to Order Adopting Mandatory Meet and Confer Rule Highlights Tension in Addressing Cost and Efficiency in E-Discovery : Electronic Discovery Law.

Filed Under: From The News Tagged With: Amendment, Confer, discovery law, Dissent, electronic discovery, information, judicial intervention, order, procedure committee, wisconsin supreme court

District Court Declines to Order Incarceration for Defendant’s Bad Faith Spoliation but Orders Monetary Sanction of $337,796.37 : Electronic Discovery Law

December 1, 2010 By Global EDD Group Leave a Comment

Victor Stanley, Inc. v. Creative Pipe, Inc. (“Victor Stanley II”)

As previously summarized on this blog, defendant Mark Pappas, President of Creative Pipe, Inc., was ordered to “be imprisoned for a period not to exceed two (2) years, unless and until he [paid] to Plaintiff the attorney’s fees and costs that will be awarded…” as a sanction for willful, bad faith discovery violations which the Magistrate Judge ruled would be treated as contempt of the Court. On defendants’ appeal, the District Court Judge declined to adopt the Magistrate Judge’s order regarding incarceration:

[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings. Certainly, if Defendant Pappas should fail to comply with a specific payment order, the Court may issue an order requiring him to show cause why he should not be held in civil contempt for failure to comply wit that payment order. Also, under appropriate circumstances, criminal contempt proceedings might be considered.

The court upheld the Magistrate Judge’s order and recommendations in all other respects, however, and ordered defendants to pay plaintiff Victor Stanley, Inc. $337,796.37 as a sanction for their bad faith spoliation.

via District Court Declines to Order Incarceration for Defendant’s Bad Faith Spoliation but Orders Monetary Sanction of $337,796.37 : Electronic Discovery Law.

Filed Under: From The News Tagged With: civil contempt, contempt, contempt proceedings, creative pipe inc, Electronic, magistrate judge, Monetary, monetary sanction, order, payment

The Big Chart: Who Represents Who? | Corporare Counsel

August 20, 2010 By Global EDD Group Leave a Comment

We researched the Fortune 100 to find out which law firms they used in 2009 in each of the following practice areas: corporate, contracts litigation, labor litigation, torts litigation and intellectual property. Companies are listed in alphabetical order.

via The Big Chart: Who Represents Who?.

Filed Under: From The News Tagged With: corporate contracts, Fortune, fortune 100, labor, law, law firms, order, practice areas, Represents, torts

Court Enters Order on Sanctions in Phillip M. Adams & Assoc., Concludes Based on “Minimal Evidence” Presented that “It Is Not Clear that [Defendant] Spoliated Evidence” : Electronic Discovery Law

August 11, 2010 By Global EDD Group Leave a Comment

Phillip M. Adams & Assoc. LLC v. Windbond Elec. Corp., 2010 WL 2977228 (D. Utah July 21, 2010)

via Court Enters Order on Sanctions in Phillip M. Adams & Assoc., Concludes Based on “Minimal Evidence” Presented that “It Is Not Clear that [Defendant] Spoliated Evidence” : Electronic Discovery Law.

Filed Under: From The News Tagged With: defendant, discovery, discovery law, Electronic, electronic discovery, minimal evidence, order, Presented, Spoliated, windbond

Court Approves Order for Preservation of Documents and Tangible Things in Toyota Litigation : Electronic Discovery Law

August 4, 2010 By Global EDD Group Leave a Comment

n re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 2010 WL 2901798 (N.D. Cal. July 20, 2010)

On July 20, 2010, the District Court entered an Order for the Preservation of Documents and Tangible Things which was submitted by the parties. The order, which addresses only the preservation of documents and not relevance, discoverability, or admissibility, includes sections entitled: “Documents and Tangible Items Required to be Preserved”, “Documents Not Required to be Preserved”, “Permissible Modifications and Alterations of Documents”, and “Implementation and Modification of Order”.

via Court Approves Order for Preservation of Documents and Tangible Things in Toyota Litigation : Electronic Discovery Law.

Filed Under: From The News Tagged With: discovery, discovery law, Electronic, electronic discovery, Motor, order, Preserved, sales practices, toyota motor, toyota motor corp