Category Archives: Case law

Judge Tells Non-Party Google: Show Apple Your Search Terms

Magistrate Judge Paul Grewal

E-discovery disputes typically arise between the parties to a lawsuit. But what happens when a non-party to the lawsuit is subpoenaed to produce electronically stored information? To what extent do its obligations mirror those that apply to the parties under the federal discovery rules?

That was the question in a recent case in which the non-party was none other than search giant Google. The question arose after another technology giant, Apple, as part of its ongoing patent litigation against Samsung, subpoenaed Google to produce certain documents.

After Google produced documents in response to the subpoena, Apple and Google held a meet-and-confer at which Apple raised concerns about the deficiency of Google’s production. To alleviate its concerns and enable it to evaluate the adequacy of the production, Apple requested that Google provide a list of the search terms and custodians Google used to find the documents. Continue reading

In Praise of Proportionality: Judge OKs Predictive Coding After Keyword Search

Predictive coding purists might argue that the process is tainted if it is preceded by the use of keyword searching to reduce the document set. As a matter of fact, that was exactly what the plaintiffs argued in the multi-district litigation against Biomet over its M2a Magnum hip implant. But in a ruling last week, U.S. District Judge Robert L. Miller Jr. said that proportionality trumped purity, and that even if predictive coding might unearth additional relevant documents, the cost would far outweigh the likely benefits.

The ruling came in a highly contentious matter in which Biomet has already produced 2.5 million documents out of a universe of 19.5 million. The plaintiffs say Biomet has not produced enough and that Continue reading

Court Awards $2.8M to Cover Cost of Technology Assisted Review

Judge Battaglia

Among e-discovery practitioners, it was a major milestone last year when U.S. Magistrate Judge Andrew J. Peck issued Da Silva Moore v. Publicis Groupe, the first judicial opinion expressly approving the use of technology-assisted review. In the context of real-world litigation, however, using TAR may be only half the battle — there is also the issue of having to pay for it. Thus, another judicial milestone may have been reached recently when a federal judge in San Diego awarded $2.8 million for costs associated with the use of TAR in a complex patent lawsuit that involved “voluminous” quantities of electronically stored information.

The fee award in Gabriel Technologies Corp. v. Qualcomm Inc. was part of a much-larger $12.4 million attorneys’ fees award in favor of Qualcomm. Continue reading

Report: Predictive Coding Replaces Sanctions as the Big News in E-Discovery

For the last several years, year-end reports on e-discovery have highlighted sanctions as the lead headline. (For examples from this blog, see Report: Sanction Requests Rise But Awards Hold Steady for 2011 and E-Discovery Sanctions Reach an All-Time High, Survey Finds.) For 2012, however, a different story took the lead spot — the rise of predictive coding.

Such is the conclusion of the 2012 Year-End Electronic Discovery and Information Law Update published by the law firm Gibson Dunn. Continue reading

Article: Predictive Coding Helps Companies Reduce Discovery Costs

Computer Technology Review has published an article by John Tredennick, Catalyst’s founder and CEO, “Predictive Coding Helps Companies Reduce Discovery Costs.” In it, John discusses how recent court decisions have opened the door to wider use of technology-assisted review to cut costs in document discovery.

In particular, he focuses on Magistrate Judge Andrew J. Peck’s 2012 decision, Da Silva Moore v. Publicis Groupe, writing: Continue reading

Treading Past Angels: Finding the Right Search Expert for Your Case

Last February, Assured Guaranty Municipal Corp. sued UBS Real Estate Securities Inc. for breach of contract, accusing the company of failing to meet obligations related to the pooling of residential mortgage-backed securities. As the case moved along, disputes arose over discovery and both sides filed motions to compel.

One of the discovery issues in dispute was the adequacy of the search terms that Assured proposed to apply to electronic documents. Ruling on this issue in a Nov. 21, 2012, memorandum, U.S. Magistrate Judge James C. Francis IV began by quoting the oft-cited words of another U.S. magistrate judge, John M. Facciola, in U.S. v. O’Keefe: Continue reading

Discoverability of Social Media: Two Similar Cases Reach Opposite Results

Judges GavelGiven the popularity of Facebook, Twitter, blogs and the like, it is not surprising that social media are a frequent target of discovery requests. Neither is there any real dispute that, in the proper circumstances, one’s social media activity is discoverable. But what are the circumstances that justify production of social media communications and what limits, if any, apply?

Two recent and strikingly similar cases illustrate that courts are not in accord on the scope of social media discovery. On very similar facts–both involving claims of employment discrimination and emotional distress–the two courts Continue reading

The Next Big Predictive Coding Case that Wasn’t

The case that many believed might be the next big bang in predictive coding jurisprudence instead has ended with barely a whimper.

As I noted here last month, in the wake of Magistrate Judge Andrew J. Peck’s ruling in Da Silva Moore v. Publicis Groupe affirming the use of predictive coding, many in the e-discovery field turned their attention to Kleen Products LLC v. Packaging Corporation of America, believing that it might be the Next Big Case on predictive coding.

The plaintiffs in Kleen Products had asked U.S. Magistrate Judge Nan Nolan to require the defendants to use predictive coding and Judge Nolan had conducted two days Continue reading

Court Orders Counsel to Disclose E-Discovery Search Strategy

Out of concern that counsel may not have sufficiently supervised their client’s production of electronic documents, a federal judge in New Mexico has ordered the attorneys to disclose the search strategy their client used to identify responsive documents. In so ruling, the judge relied on the federal rule that requires attorneys to sign discovery responses and certify that they are “complete and correct.”

Addressing motions to compel discovery in the case of S2 Automation LLC v. Micron Technology, U.S. District Judge James O. Browning ruled that S2 Automation would have to provide to Micron Continue reading