In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012)

Plaintiffs moved for review of the clerk’s taxation of costs, including those related to electronic discovery.  Noting the recent decision of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp, which narrowly interpreted 28 U.S.C. § 1920(4) and which vacated a lower court’s approval of many costs related to electronic discovery, the California court nonetheless declined to disallow the costs related to electronic discovery in this case: 

The court declines to disallow remaining costs on the grounds argued by plaintiffs (e.g., TiFF conversion costs; copying/”blowback” costs purportedly not documented; document productions purportedly not delivered; professional fees re visual aids).  Furthermore, although the court takes note of the Third Circuit’s well-reasoned opinion in Race Tires Am., Inc. v. Hoosier Racing Tire Crop., ––– F.3d ––––, 2012 WL 887593 (3d Cir. Mar.16, 2012), the court concludes that in the absence of directly analogous Ninth Circuit authority, and in view of the court’s prior order in connection with the Blockbuster subscriber plaintiffs’ motion for review of the clerk’s taxation of costs, broad construction of section 1920 with respect to electronic discovery production costs—under the facts of this case—is appropriate.  See also Taniguchi v. Kan Pacific Saipan, Ltd., 633 F.3d 1218, 1221 (9th Cir.2011) (although the court is restricted in awarding costs to the categories enumerated in § 1920, “[d]istrict courts are free to interpret the meaning of the cast of categories listed within § 1920”).

Following adjustments to the clerk’s original award to omit disallowed costs, the total award to Netflix equaled $ 710,194.23.

A copy of the order is available here.

Background:

N.D. California Court Declines to Follow Race Tires, Allows Taxation of e-Discovery Costs
Source: original article
Author: K&L Gates
Categories: Electronic discovery, e-discovery, ediscovery

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31 January 2012 - In responding to Requests for Production of documents you have three response choices  (1) agree to produce; (2) state that after a diligent search and a reasonable inquiry you have no documents, or (3) object.  If you chose option three, then you must:

(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.  See C.C.P §2031.240(b)

This document is more commonly known as the “privilege log”. 

For more from Katherine Gallo click here.

Background:

In California, the document from Hell — aka The “Privilege Log”
Source: original article
Author: posselist
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

DCG Sys., Inc. v. Checkpoint Techs., LLC, No. C-11-03792 PSG, 2011 WL 5244356 (N.D. Cal. Nov. 2, 2011)

In this patent case, Defendant sought an order adopting a modified version of the Model Order on E-Discovery in Patent Cases (“Model Order”) recently promulgated by a subcommittee of the Advisory Council of the Federal Circuit (available here).  Significantly, the Model Order limits the discovery of email by placing limitations on the allowable number of custodians and search terms.  According to the court, such limitations “are designed to address the imbalance of benefit and burden resulting from email production in most cases.”  The order proposed by the Defendant similarly limited the discovery of email.

Plaintiff opposed the adoption of such an order and urged the court to impose any limits on email discovery pursuant to the applicable provisions of the Federal Rules.  Plaintiff further argued that this case was unlike “those ‘actions brought by non-practicing entities where there are large imbalances in the cost and volume of discovery’” and instead involved direct competitors which “introduces issues in this case that are not contemplated by the Model Order” including, for example, “the issue of whether Checkpoint copied DCG’s products and whether DCG is entitled to an injunction.”

The court was not persuaded:

The court is not persuaded by DCG’s argument for at least two reasons.  First, although the undersigned will not presume to know whether Chief Judge Rader or any of the esteemed members of the subcommittee were focused exclusively on reducing discovery costs in so-called "NPE" cases, there is nothing in the language of the Chief Judge’s speech or the text of the model order so limiting its application.  Second, and more fundamentally, there is no reason to believe that competitor cases present less compelling circumstances in which to impose reasonable restrictions on the timing and scope of email discovery.  To the extent DCG faces unique or particularly undue constraints as a result of the limitations, it remains free, under the Model Order, to seek relief from the court.  But in general copying and the availability of an injunction are issues that are impacted by such restrictions no more than the myriad of other issues (e.g., inducement, state of the art, willfulness) that are present in just about all patent cases.  And if competitor cases such as this lack the asymmetrical production burden often found in NPE cases, so that two parties might benefit from production restrictions, the Model Order would seem more appropriate, not less.

Perhaps the restrictions of the Model Order will prove undue.  In that case, the court is more than willing to entertain a request to modify the limits.  But only through experimentation of at least the modest sort urged by the Chief Judge will courts and parties come to better understand what steps might be taken to address what has to date been a largely unchecked problem.

A coy of the full opinion is available here.

Background:

California Federal Court Grants Motion to Adopt Version of Model Order on E-Discovery in Patent Cases Promulgated by Federal Circuit
Source: original article
Author: K&L Gates
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

The veto was especially surprising because the bill passed the California Assembly without a single “no” vote. The move appears to be Schwarzenegger’s reaction to his frustration with the Assembly rather than opposition to the bill.

Schwarzenegger’s veto included language he had used when vetoing a number of recent bills:

“The historic delay in passing the 2008-2009 state budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session,” wrote Schwarzenegger. “Given the delay, I am only signing bills that are the highest priority for California. This bill does not meet that standard and I cannot sign it at this time.”

To read politician’s response and a full article on this story, visit Schwarzenegger’s Veto: A Raw Deal for E-Discovery?