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Case Summary: Seven Seas Cruises; Gaps in the Production Examined

Posted by rjbiii on March 24, 2011

Seven Seas Cruises S. De. R.L. v. V. Ships Leisure SAM, 09-23411-CIV-UNGARO/SIMONTON, 2011 U.S. Lexis 19465 (S.D. Fla., Feb. 19, 2011).

Plaintiff Seven Seas initiated the action against multiple defendants, claiming damages from defendants’ “failure to provide proper ship management, care and oversight for several cruise ships…”. Specific accusations included, inter alia: negligent representations, negligence, and breach of contract. After defendants answered, and both sides filed tit for tat motions for summary judgment, the court issued an order granting a motion to compel filed by Plaintiffs. The motion required defendants to:

  • Identify which employees’ systems had been searched;
  • Explain the absence of certain documents from production; and
  • Describe search terms used to conduct ESI searches.

The order allowed that after defendants filed an affidavit with the information required by the order, plaintiffs were free to renew their motion for to compel further discovery. They elected to do exactly that, resulting in this opinion.

Plaintiffs’ position:

Plaintiffs maintain that they have discovered “gaps” in the production by plaintiffs, despite defendants’ repeated assurances to the contrary. First, plaintiffs contend defendants searched (and produced) the ESI for a mere nine employees, failing to search other custodians likely possessing relevant data. Seven Seas had submitted a list of 19 employees/custodians or email addresses that were incorrectly excluded from searches.

Next, Seven Seas argue that the production for those custodians that were searched was incomplete. To bolster their claim, plaintiffs identified specific time frames where ESI was not produced for those custodians. They claimed this was the case for at least four custodians. Plaintiff’s attorneys approach in pressing their case is described by the court:

At the hearing, Plaintiffs chronologically recounted each request made by Plaintiffs through the course of discovery regarding the production of ESI, and also reiterated the representations made by the Defendants in response to those requests. Generally, throughout the course of the ESI discovery, Defendants assured Plain-tiffs that Defendants were conducting complete ESI searches for materials responsive to Plaintiffs’ requests. Plaintiffs contend, however, that each time such production or representation regarding the thoroughness of the production was made, that Plaintiffs later found out that the production was not, in fact, complete.

In addition, throughout the hearing, Plaintiffs pointed to statements made by Defendants in submissions to the Court wherein Defendants repeatedly asserted that all relevant custodians’ computers and laptops had been searched. According to Plaintiffs, as a result of the repeated assurances by Defendants that ultimately proved to not be true, Plaintiffs have no confidence in the Defendants’ ability to conduct proper ESI searches, and further have no faith in the Defendants’ representations regarding the same.

And then they bring it home with this:

Thus, Plaintiffs argue that because the Defendants’ failure to produce all responsive ESI discovery has prejudiced the Plaintiffs and because such omissions are ongoing and intentional, that the Court should strike the Defendants’ pleadings and enter a final default judgment against both Defendants. In addition, Plaintiffs request that the Defendants be ordered to pay the costs associated with Plaintiffs having to bring the Renewed Motion to Compel.

Post Process Comment: From the outside looking in, it really looks like counsel for Seven Seas went about this the right way. We have analyzed, in the past four years, innumerable cases where the court felt the need to admonish counsel for vagueness, or making conclusory statements without backing them up with evidence. Here, counsel went through a round of “attack analytics,” (we’ll look at this in a moment) during which they analyzed the production, documented what they perceived as deficiencies, and presented their findings as argument, while including specific examples for the court to hang its hat on. Of course, we aren’t done…defendants get their chance to speak.

Defendants position:

Defendants “generally took exception” with some of the “missing custodians” included on Plaintiffs list, and supplemented their arguments with specific information to explain the absence of either custodians from the search, or for data missing for specific time periods from produced custodians.

Defendants then acknowledged that not all relevant ESI had been produced, and then conceded that “in hindsight” and e-discovery consultant or vendor should have been retained to assist them.

Post Process Comment: This is a telling admission. It is an implicit acknowledgment that eDiscovery methodologies weren’t solid due to the inexperience of their staff who were engaged in the project.

In an effort to put the best face on things, V. Ships Leisure reiterated earlier assertions (at least to effort…doesn’t seem possible that they continued to claim the production wasn’t deficient in light of their earlier admission). They also noted that they had supplemented production with additional data, and were prepared to hand over more data that very day. V Ships Leisure then noted went to the “volume defense” by noting that they had already produced hundreds of thousands of documents (ESI and hard copy). They also defended their efforts by noting that some of their custodians were overseas, complicating the logistics behind their project.

V Ships Leisure continued their arguments by stating that the bulk of the relevant evidence was contained in correspondence between plaintiffs and defendants, so plaintiffs already had most of the evidence prior to their suit. Defendants complained that Seven Seas had never alerted them to the gaps prior to filing their motion. Although defendants agreed to re-execute the searches on both already produced custodians and on “missing” custodians, they also claimed that no prejudice to plaintiffs had been demonstrated, an argument plaintiffs could not refute.

Post Process Commentary: Defendants fought back hard, but is it enough? Their admissions may be the most significant part of their arguments, but perhaps their efforts in already producing substantial volumes of data, and the potential lack of prejudice to plaintiffs will carry the day.

The court began by reciting the law behind FRCP 37.

Federal Rule of Civil Procedure 37 addresses a litigant’s failure to make disclosures or to cooperate in discovery and sets forth sanctions that may be imposed by a Court. Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Thus, Federal Rule of Civil Procedure 37 gives a district court the power to enter a default, strike pleadings, or render judgment against a party that disobeys the court’s discovery or pretrial scheduling orders. However, the severe sanction of a default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders. In addition, Rule 37(b) only permits imposition of the ultimate sanction if a party willfully or in bad faith failed to obey a discovery order. It is not justified under Rule 37(b) if a party’s failure to comply with a discovery order was caused by simple negligence or a misunderstanding of the court order. If the party does not provide a credible explanation of how he interpreted an order compelling discovery in a way that excluded certain documents from the scope of the order, the party’s unsupported assertion that it misunderstood the order is insufficient, and it is not clear error for the district court to find that the party’s failure to comply with the discovery order was willful and in bad faith. Further, when a party claims that he was unable to produce documents in the time allowed by the court, but he does not produce any evidence to support the argument, a district court’s finding of willfulness is not clearly erroneous. Nonetheless, a district court is not required to first impose lesser sanctions if the lesser sanction would be ineffective.

Defendants’ Failure to Produce ESI:

The court began by reciting a history of disputes caused by defendant’s failures to produce or thoroughly search for potentially relevant ESI. The court then admonished both parties for failing to conduct an early meet and confer:

[I]t appears that many of the disputes related to the production of e-discovery could have been significantly narrowed, if not totally avoided, had the Parties held an e-discovery conference early-on in the litigation as required by Federal Rule of Civil Procedure 26(f), wherein issues regarding disclosure and production of ESI could have been thoroughly discussed.

Continuing on, the court articulated its first major conclusion:

[I]t is clear that the Defendants have failed to properly conduct complete, thorough and timely searches of ESI responsive to the Plaintiffs’ discovery requests. There is no doubt that the manner and method in which the Defendants conducted their ESI searches were wholly inadequate.

That said, the court noted that because the production gaps had not yet been plugged, the damage done to plaintiff’s case could not yet be determined. The court also applied some blame to Seven Seas, noting that they could have identified missing custodians or data sources earlier. While the court granted that defendant’s deficiencies were more likely due to its staff’s “unfamiliarity” with e-discovery, and not any malfeasance, the continued inability to conduct EDD competently at this point in the game is inexcusable.

On this point, the court stated:

Indeed after this Court’s January 19th Order, if not before, the Defendants should have reasonably known that they needed to retain an E-discovery consultant to ensure that they properly conducted their ESI searches.

Because of this, said the court, sanctions were appropriate. The ordered defendants to engage an electronic discovery vendor to assist in searching and producing ESI from certain custodians included on plaintiff’s “missing custodian list.” Plaintiff’s request to re-execute searches over the data sets associated with custodians whose ESI had already produced was denied, as in the court’s view, the production of this data was sufficient.

The court concluded that the appropriate sanctions were to:

  • Deny defendants motion for summary judgment;
  • Award plaintiffs attorneys costs, to be paid by defendants.

The court declined to enter a default judgment on behalf of plaintiffs, as had been requested in the Motion to Compel.

Post Process Comment: The sanctions imposed might be considered fairly mild, considering some of the language contained within the opinion. The biggest mitigating factor for defendants appeared to be the lack of any evidence concerning damage done to plaintiffs case by the omissions in production.

I’d like to reflect a bit on the evidence and arguments brought by Plaintiffs to demonstrate that deficiencies exist in the production. There are two common methods of attacking document productions. You can impugn the results–that is, the contents in the production dataset–or you can question the methodology that produced the dataset. Here, we see examples of both.

In attacking the production, plaintiffs examined the production and reviewed what custodians might be missing. This can be done by reviewing correspondence. When you get significant email or mail traffic going to or coming from individuals whose data has not been produced, a flag should come up. And that’s what was done here.

Another way to look at custodians or data sources is to obtain knowledge of opposing party’s IT systems to ensure that all repositories were searched. Perhaps a Sharepoint site was established where an implicated project’s documents were stored, but not searched or produced.

By attacking the results, you eventually hope to discover a weak methodology or holes in the workflow…because merely pointing out bad results can sometimes be dismissed by legitimate factors (so-called safe harbor deletions, or data residing in sources which are “not readily accessible”).  Of course, if production results are obviously deficient, then perhaps that in itself can provide sufficient ammunition to warrant sanctions or other measures.

Next, plaintiffs looked at material from those custodians whose data was produced, and analyzed its completeness by focusing on chronology. This “production gap” analysis has proven very effective, in my experience. Sometimes such gaps can be legitimately explained, but their existence, especially across multiple custodians, should be explored.

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Posted in 11th Circuit, Case Blurbs, Cooperation Between Parties, Cost of Discovery, Discovery Requests, Duty to Disclose, Duty to Produce, FRCP 26(f), FRCP 37, Magistrate Judge Andrea M. Simonton, Meet and Confer, Motion to Compel, S.D. Fla., Sanctions | 2 Comments »

Case Summary: AccessData; Effects of German Blocking Statute on Discovery Obligations

Posted by rjbiii on January 27, 2010

AccessData Corp. v. ALSTE Techs. GMBH, 2010 U.S. Dist. LEXIS 4566 (D. Utah Jan. 21, 2010).

Background: In May, 2005, AccessData and ALSTE Technologies GmbH (“ALSTE”) entered into a contract allowing ALSTE to resell to their customers. Since executing the agreement, ALSTE has sold “hundreds, if not thousands” of AccessData’s products. AccessData sued ALSTE for breach of contract, alleging that over $79,000 in invoices had not been paid for its FTK toolkit 2.0 software. While ALSTE admits that it hasn’t paid the invoices in question, it asserts that it shouldn’t be made to, as the software is defective. ALSTE also filed a counterclaim for the breach of a technical support agreement requiring AccessData to pay ALSTE $2,000 to $4,000 per month to cover technical support for users of AccessData’s products in Germany who were not also customers of ALSTE.

Procedural History: AccessData made requests to ALSTE for the production of documents containing information on customer complaints and any resulting injury suffered by ALSTE. AccessData also propounded interrogatories asking ALSTE to provide information and document regarding any technical support it provided non-customers under the Technical Support Agreement. ALSTE objected to the interrogatories and production requests, contending they were: 1) overly broad, unduly burdensome, and sought irrelevant information, and 2) the disclosure of information relating to third parties identities would violate German law. Access then filed the motion to compel on which the court rules in this opinion.

Discussion: The court stated that ALSTE assertion that providing personal information about its customers and their employees “would be a huge breach of fundamental privacy laws in Germany,” was not backed up by reference to any specific rule or law. ALSTE failed to cite any provision of the German Data Protection Act (GDPA) or German Constitution to back-up its claim. The court then noted that I, Section 4c of the GDPA, entitled “Derogations,” allows for the transfer of personal information to countries without the same level of data protection if the data subject gives his or her consent, or the transfer is necessary or legally required for the establishment, exercise, or defense of legal claims. The court wrote that ALSTE had not described any difficulties in obtaining consent, or explained why the provisions would not apply to this case.

Even in the event that ALSTE had overcome those challenges, the court stated that it disagreed with ALSTE’s assertion that the court must comply with the Hague Convention’s rules governing disclosure of evidence to courts in foreign countries. Citing Societe Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522, 544, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987), the court noted that the law in the U.S. was: “It is well settled that such [blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”

The Supreme Court referenced the American Law Institute summary of the interplay between blocking statutes and discovery orders generally:

“[W]hen a state has jurisdiction to prescribe and its courts have jurisdiction to adjudicate, adjudication should (subject to generally applicable rules of evidence) take place on the basis of the best information available . . . . [Blocking] statutes that frustrate this goal need not be given the same deference by courts of the United States as substantive rules of law at variance with the law of the United States.”

Ultimately, the court decided on this issue to overrule the objections to the discovery request and required ALSTE to search through their data repositories and produce the requested data.

Posted in 10th Circuit, Blocking Statutes, Case Summary, D. Utah, Discovery Requests, Duty to Disclose, Duty to Preserve, Duty to Produce, Hague Convention, International Issues, Magistrate Judge Paul M. Warner | Leave a Comment »

Case Summary: MFormation Technologies; Court looks at how data is ‘Ordinarily maintained’

Posted by rjbiii on November 27, 2009

Espy v. Mformation Techs., 2009 U.S. Dist. LEXIS 81832 (D. Kan. Sept. 9, 2009)

Factual Background: Plaintiff (Brian Espy) brought this action to recover commissions for sales made while in the employ of defendant company (Mformation). Plaintiff resigned from the company because of disagreements over the method of calculating those commissions. There was also a dispute regarding the value of the accounts for which the commissions would be paid.

In late 2007 or early 2008, defendant company was positioning itself for sale. As part of that process, the company established a secure website to which it published much confidential financial information about itself. Items published included such things as articles of incorporation, board and stockholder meeting minutes, past financial statements, and future financial forecasts of revenues. Mformation limited access to this website to companies and individuals who obtained a secure password from Mformation. The website collected information as to who entered the website and when, not only as to the company that was making the contact, but more specifically the individuals who accessed the site.

Plaintiff contends that the company would have had to have include information on the value of the Clearwire account (the largest of Plaintiff’s accounts for which he sought commissions), and he sought to obtain names of prospective purchases who may have been privy to this information. During deposition, Mformation CEO Mark Edwards refused to provide this information, claiming that the information was privileged and confidential, and that the request was not made to lead to the discovery of admissible evidence. Defendants did, however, state that “all of the representations made to all the third parties are contained in a CD of the secure website which Defendants finally located and provided to the court for in camera inspection.”

Before the court were multiple motions by plaintiff to compel production, and a motion that sanctions be imposed for failure to produce documents.


Identity of Third Parties & continuation of Edwards’ deposition

Defendants represented to the court that all information provided to prospective third-party purchasers about the value of the company was located on the secure website, and that no further materials existed from follow-up discussions or meetings. Certain emails which were attached as exhibits convinced the court that these representations were false, despite defendants’ continued assertions that of the accuracy of those statements. In light of this, the court required defendants to produce to Plaintiff the CD containing the contents of the secure website and certain hard copy documents that were previously produced to the court for in camera inspection.

Defendants argued that because these materials were confidential and proprietary, they should be allowed to produce a redacted version of the material, or have a special master appointed at Defendants’ expense to govern this particular dispute. The court disagreed, however, saying that while it was understood that these materials were confidential, they were also dated, as none of the information includes current financial information or projections.

The court also granted Plaintiff the right to depose any prospective third party purchaser had any direct communications with Mformation or its representative. The court accepted defendant’s offer to produce its 30(b)(6) witness for a deposition, scheduled earlier but cancelled due to that witness’s illness. Finally, in light of the fact that it appeared that responsive data associated with third party prospective purchasers had not been produced by defendant, the court ordered defendant to go back and review its files and records and produce anything it missed first time around.


Documents presented to board of directors concerning Clearwire contract

The court noted that it appeared that documents associated with the Clearwire contract not necessarily involving representations to third parties. The court stated that such documents presented to it for in camera review, in the form of a presentation made to the board of directors during a meeting of that group. Defendants argue that they produced any relevant documents in this category, but the judge noted that they presumably did not produce this document, due to its presence in the in camera review. The court ordered the defendants to produce any such documents that might have been missed in previous productions.

Financial records of Mformation and receipt of payments from contracts booked by Plaintiff

Plaintiffs requested that all documents related to the financial condition of Mformation between the months of December 2007 through May 2009. Defendant’s objected that this request was overly broad and burdensome, and not calculated to lead to the discovery of admissible evidence. Plaintiffs argued that it was entitled to the information because of Defendant’s position (either explicit or implied) that it cannot pay certain commissions. The court agreed with Defendants that the request was extremely broad and could encompass a substantial volume of records, and concluded that plaintiffs reason were not sufficient to mandate a production of all documents encompassed in the request. The court decided to require all financial information concerning the receipt of payments from all contracts for which Plaintiff is seeking commissions. The rub here is that Defendant claimed that it had already produced these documents. The court seemed to express its concern about being able to identify these documents within the large document collection already produced to plaintiff.

Plaintiff complained that defendant’s documents were produced in electronic format, without bates stamps and not categorized in response to the specific requests or interrogatories and that this caused Plaintiff difficulty in accessing and reviewing these records. Defendants responded to this complaint by representing that the documents were produced in the manner in which they are stored and kept in the usual course of the business.

The court then discussed the interpretation of FRCP 34, which allows production as documents are maintained in the usual course of the producing party’s business. The court noted that in attempting to define the requirements that should be place on a producing party who chooses to produce documents in the manner they are normally maintained, the courts have attempted to balance the burden on the respective parties. Generally, courts have concluded that simply dumping a mass of documents on the requesting party may not satisfy the rule’s requirements, even though the undifferentiated mass of documents are in the same form as maintained by the producing party. The court concluded that Defendants should be required to specifically identify, by index or otherwise, those specific financial records that relate to receipts of payments from all contracts for which Plaintiff is seeking commissions, and to specify, by index or otherwise, any financial records of Mformation, from December 2007 through May 2009, that specifically relate to treatment of those contracts, specifically including the Clearwire contract. The court also ordered Defendants to produce documents associated with a separated, but related, request to produce certain financial records not previously provided, some of which were unavailable at the time of the request.

Plaintiff’s Request for Sanctions
The court then turned its attention to Plaintiff’s two motions for sanctions. First, Plaintiff requested that he be reimbursed for all costs associated with discovery from Clearwire, including costs for service of a subpoena to Clearwire and the costs for any deposition of Clearwire, including travel to Seattle, court reporter fees and attorneys fees at $ 250 per hour. Plaintiff also sought all expenses associated with the continuation of the depositions of [Mformation CEO] Mark Edwards and the Rule 30(b)(6) deposition of Defendant , including travel to Defendant’s location in New Jersey, court reporter costs and attorneys fees.

In its second motion, Plaintiff repeated its earlier requests, Plaintiff also sought an order striking Defendants’ responsive pleadings and entering judgment in Plaintiff’s favor and the costs associated with the filing of pleadings concerning the discovery dispute.

The court reiterated its determination that that Defendant be required to produce Mark Edwards for the continuation of his deposition and to produce Mformation’s Rule 30(b)(6) witness for deposition, were to be taken at Defendants’ cost, and that all travel and court reporter’s expenses for both of these depositions were the responsibility of Defendants. The court also ordered Defendants to pay attorneys’ fee for the time spent in completing the deposition of Mark Edwards, capped at $1,250.

The court, however, did not grant Plaintiff’s its request for attorneys fee for conducting the Rule 30(b)(6) deposition of Mformation, as this deposition was merely delayed due to the witness’s illness. This is especially true when one considers that Defendants have voluntarily offered to bring the 30(b)(6) witness to Kansas City for deposition. The court also ordered Defendants to pay he costs and attorneys fees required to file such motions. The court denied the request for all other expenses, without prejudice for renewal in the future.

Motions for additional sanctions were denied.

Posted in 10th Circuit, Case Summary, D. Kan., Data Dump, Discovery Requests, FRCP 30(b)(6), FRCP 34, Magistrate Judge Donald W. Bostwick, Objections to Discovery Requests, Overly Broad Request, Relevance, Sanctions | Leave a Comment »

Case Blurb: Thai Heng Chang; Court discusses documents produced across matters

Posted by rjbiii on September 16, 2008

The Court agrees generally that Defendant should not have to produce documents he has already produced, whether in another cause or not, but he may not simply refer Plaintiff to the other lawsuit with the general objection that he’s already produced responsive documents. Defendant must respond to each discovery request served in this case and identify each responsive document by Bates number or other identifying information that specifies the precise document. Of course, any responsive documents between March 22, 2007, and July 1, 2007, would not be previously produced in response to the subpoena, and therefore, shall now be produced within ten days of this date.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *2 (N.D.Fla. Aug. 29, 2008 ) (emphases in the original).

Posted in 11th Circuit, Case Blurbs, Discovery Requests, Duty to Produce | Leave a Comment »

Case Blurb: YouTube; Court Denies Motion to Compel Production of “Private” Videos and Related Data-For the Most Part

Posted by rjbiii on August 12, 2008

Private Videos and Related Data

YouTube.com users may override the website’s default setting–which makes newly added videos available to the public–by electing to mark as “private” the videos they post to the website. Plaintiffs move to compel production of copies of all those private videos, which can only be viewed by others authorized by the user who posted each of them, as well as specified data related to them.

Defendants are prohibited by the Electronic Communications Privacy Act (“ECPA”) (18 U.S.C. § 2510 et seq.) from disclosing to plaintiffs the private videos and the data which reveal their contents because ECPA § 2702(a)(2) requires that entities such as YouTube who provide “remote computing service to the public shall not knowingly divulge to any person or entity the contents” of any electronic communication stored on behalf of their subscribers, FN8 and ECPA § 2702 contains no exception for disclosure of such communications pursuant to civil discovery requests.

FN8:The prohibition against divulgence of stored subscriber communications set forth in ECPA § 2702(a)(2) applies only “if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing” (id. § 2702(a)(2)(B)), but defendants satisfy that condition here because their authorization to access and delete potentially infringing private videos is granted in connection with defendants’ provision of alleged storage services.

Plaintiffs claim that users have authorized disclosure of the contents of the private videos pursuant to ECPA § 2702(b)(3) (remote computing service providers “may divulge the contents of a communication * * * with the lawful consent of * * * the subscriber”) by assenting to the YouTube website’s Terms of Use and Privacy Policy, which contain provisions licensing YouTube to distribute user submissions (such as videos) in connection with its website and business, FN9 disclaiming liability for disclosure of user submissions, FN10 and notifying users that videos they divulge online in the public areas of the website may be viewed by the public.

FN11 None of those clauses can fairly be construed as a grant of permission from users to reveal to plaintiffs the videos that they have designated as private and chosen to share only with specified recipients.

FN9: “However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive * * * license to * * * distribute * * * the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business.” This authorizes YouTube to post the video on the website; the privacy designation restricts to whom it may be shown.

FN10: “YouTube does not guarantee any confidentiality with respect to any User Submissions.”

FN11: The record shows that the provision of the Privacy Policy plaintiffs point to, which states that “Any videos that you submit to the YouTube Sites * * * may be viewed by the general public” refers to “personal information or video content that you voluntarily disclose online (on discussion boards, in messages and chat areas, within your playback or profile pages, etc.)” which “becomes publicly available.”

But the ECPA does not bar disclosure of non-content data about the private videos (e.g., the number of times each video has been viewed on YouTube.com or made accessible on a third-party website through an ’embedded’ link to the video). Plaintiffs argue that such data are relevant to show whether videos designated private are in fact shared with numerous members of the public and therefore not protected by the ECPA, and to then obtain discovery on their claim (supported by evidence) FN12 that users abuse YouTube’s privacy feature “to share infringing videos with any interested member of the public while evading detection by content owners.” It is not clear from this record whether plaintiffs’ interpretation of the ECPA is correct, but their view is colorable, as the statute’s legislative history states that “a subscriber who places a communication on a computer ‘electronic bulletin board,’ with a reasonable basis for knowing that such communications are freely made available to the public, should be considered to have given consent to the disclosure or use of the communication.” Plaintiffs need the requested non-content data so that they can properly argue their construction of the ECPA on the merits and have an opportunity to obtain discovery of allegedly infringing private videos claimed to be public.

FN12: Plaintiffs submitted a snapshot of a YouTube user’s web page entitled “THE_RUGRATS_CHANNEL” which states “Disclaimer: Rugrats_and all Rugrats_related items are a copyright of Viacom” and on which the user states:

WELCOME TO MY_RUGRATS_PAGE. Previously rbt200, this is my new channel. The old one got deleted so I thought I’d start again, but this time, it’s JUST_RUGRATS! A whole channel dedicated to this fantastic cartoon! I will be posting whole episodes over the coming weeks so be sure to subscribe or add me as a friend because they might be set to private.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *25-30 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

Posted in 2nd Circuit, Case Blurbs, Discovery Requests, Duty to Produce, Electronic Communications Privacy Act, Judge Louis L. Stanton, Objections to Discovery Requests, Privacy, Relevance, S.D.N.Y, Scope of Discovery | Tagged: , , | Leave a Comment »

Case Blurb: YouTube; Court Grants Motion to Compel Videos “Removed” from Web Site

Posted by rjbiii on August 12, 2008

Removed Videos

Plaintiffs seek copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason, or such subsets as plaintiffs designate. Plaintiffs claim that their direct access to the removed videos is essential to identify which (if any) infringe their alleged copyrights. Plaintiffs offer to supply the hard drives needed to receive those copies, which defendants store on computer hard drives.

Defendants concede that “Plaintiffs should have some type of access to removed videos in order to identify alleged infringements”, but propose to make plaintiffs identify and specify the videos plaintiffs select as probable infringers by use of data such as their titles and topics and a search program (which defendants have furnished) that gives plaintiffs the capacity both to run searches against that data and to view “snapshots” taken from each removed video. That would relieve defendants of producing all of the millions of removed videos, a process which would require a total of about five person-weeks of labor without unexpected glitches, as well as the dedication of expensive computer equipment and network bandwidth.

However, it appears that the burden of producing a program for production of all of the removed videos should be roughly equivalent to, or at least not significantly greater than, that of producing a program to create and copy a list of specific videos selected by plaintiffs.

While the total number of removed videos is intimidating (millions, according to defendants), the burden of inspection and selection, leading to the ultimate identification of individual “works-in-suit”, is on the plaintiffs who say they can handle it electronically.

Under the circumstances, the motion to compel production of copies of all removed videos is granted.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *13-15 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

Posted in 2nd Circuit, Case Blurbs, Data Collection, Data Sources, Discovery Requests, Duty to Produce, Form of Production, Judge Louis L. Stanton, S.D.N.Y, Technology, Video Files | Tagged: , , | Leave a Comment »

Case Blurb: YouTube; Court Denies Motion to Compel Production of Source Code for Video ID Program

Posted by rjbiii on August 12, 2008

Plaintiffs also move to compel production of another undisputed trade secret, the computer source code for the newly invented “Video ID” program. Using that program, copyright owners may furnish YouTube with video reference samples, which YouTube will use to search for and locate video clips in its library which have characteristics sufficiently matching those of the samples as to suggest infringement. That program’s source code is the product of “approximately 50,000 man hours of engineering time and millions of dollars of research and development costs”, and maintaining its confidentiality is essential to prevent others from creating competing programs without any equivalent investment, and to bar users who wish to post infringing content onto YouTube.com from learning ways to trick the Video ID program and thus “escape detection.”

Plaintiffs claim that they need production of the Video ID source code to demonstrate what defendants “could be doing — but are not — to control infringement” with the Video ID program. However, plaintiffs can learn how the Video ID program works from use and observation of its operation, and examination of pending patent applications, documentation and white papers regarding Video ID (id.), all of which are available to them. If there is a way to write a program that can identify and thus control infringing videos, plaintiffs are free to demonstrate it, with or without reference to the way the Video ID program works. But the question is what infringement detection operations are possible, not how the Video ID source code makes it operate as it does. The notion that examination of the source code might suggest how to make a better method of infringement detection is speculative. Considered against its value and secrecy, plaintiffs have not made a sufficient showing of need for its disclosure.

Therefore, the motion to compel production of the Video ID code is denied.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614, 11-13 (S.D.N.Y. July 1, 2008 )

Posted in 2nd Circuit, Case Blurbs, Discovery Requests, Duty to Produce, Judge Louis L. Stanton, Objections to Discovery Requests, Relevance, S.D.N.Y, Scope of Discovery, Technology, Tools, Trade Secrets | Tagged: , , | Leave a Comment »

Case Blurb: YouTube; Denying Motion Compelling the Production of Source Code to Opponents

Posted by rjbiii on August 12, 2008

Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel [Defendants] to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”. [Defendants] cross-move pursuant to Fed. R. Civ. P. 26(c) for a protective order barring disclosure of that search code, which they contend is responsible for Google’s growth “from its founding in 1998 to a multi-national presence with more than 16,000 employees and a market valuation of roughly $ 150 billion”, and cannot be disclosed without risking the loss of the business. Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614, 7-8 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

YouTube and Google maintain that “no source code in existence today can distinguish between infringing and non-infringing video clips — certainly not without the active participation of rights holders”, and Google engineer Amitabh Singhal declares under penalty of perjury that:

The search function employed on the YouTube website was not, in any manner, designed or modified to facilitate the location of allegedly infringing materials. The purpose of the YouTube search engine is to allow users to find videos they are looking for by entering text-based search terms. In some instances, the search service suggests search terms when there appears to be a misspelling entered by the user and attempts to distinguish between search terms with multiple meanings. Those functions are automated algorithms that run across Google’s services and were not designed to make allegedly infringing video clips more prominent in search results than non-infringing video clips. Indeed, Google has never sought to increase the rank or visibility of allegedly infringing material over non-infringing material when developing its search services.

Id. at *9-10 (internal citations removed).

Plaintiffs argue that the best way to determine whether those denials are true is to compel production and examination of the search code. Nevertheless, YouTube and Google should not be made to place this vital asset in hazard merely to allay speculation. A plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.

Nor do plaintiffs offer evidence supporting their conjecture that the YouTube.com search function might be adaptable into a program which filters out infringing videos. Plaintiffs wish to “demonstrate what Defendants have not done but could have” to prevent infringements, (plaintiffs’ italics), but there may be other ways to show that filtering technology is feasible FN2 and reasonably could have been put in place. Id. at *10 (internal citations removed).

FN2: In the Viacom action:

Viacom is currently using fingerprinting technology provided by a company called Auditude in order to identify potentially infringing clips of Viacom’s copyrighted works on the YouTube website. The fingerprinting technology automatically creates digital “fingerprints” of the audio track of videos currently available on the YouTube website and compares those fingerprints against a reference library of digital fingerprints of Viacom’s copyrighted works. As this comparison is made, the fingerprinting technology reports fingerprint matches, which indicate that the YouTube clip potentially infringes one of Viacom’s copyrighted works.

Finally, the protections set forth in the stipulated confidentiality order are careful and extensive, but nevertheless not as safe as nondisclosure. There is no occasion to rely on them, without a preliminary proper showing justifying production of the search code.

Therefore, the cross-motion for a protective order is granted and the motion to compel production of the search code is denied. Id. at *11.

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