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Archive for the ‘Objections to Discovery Requests’ Category

Case Summary: Nissan N. Am; Court examines Collection Protocol and Request for Protective Order

Posted by rjbiii on March 21, 2011

Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., CIVIL ACTION NO. 09-CV-11783, 2011 U.S. Dist. LEXIS 16022 (E.D. Mich. Feb. 17, 2011).

Nissan had already produced “1.79 million” pages of documents, and 84,000 pages of documents from its non-party parent company. The court had ordered Nissan to supplement this production with information specifically identifying data sources not previously searched because, in Nissan;s view, they were “not reasonably accessible.” Johnson Electric, defendant company, crafted “informal” discovery requests requesting that Plaintiff produce:

  1. a data map showing what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived;
  2. document retention policies;
  3. tracking records and/or requests for restores; and
  4. backup policies.

Johnson Electric believed Nissan was obligated to produced the above to comply with the court’s order. Nissan responded by filing for a protective order denying Defendant discovery on:

  1. system-wide searches of Plaintiff’s systems and custodians beyond what has already been provided;
  2. sources identified by Plaintiff as “not readily accessible,” including back-ups;
  3. Plaintiff’s record retention practices or disaster recovery backup policies;
  4. Plaintiff’s tracking records and requests for computer restores to IT and vendors; and
  5. a “data map” to provide information on all of Plaintiff’s systems.

Johnson Electric filed a brief in response, and a cross-motion to compel Nissan’s compliance with the earlier order. Johnson Electric also asked the court to impose sanctions on Nissan, arguing that Nissan had failed to comply with their discovery obligations under that order.

The court began by stating the governing standard for its analysis, and the party’s respective arguments:

Federal Rule of Civil Procedure 26(c) allows the Court to issue a protective order for good cause shown to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Plaintiff has the burden of showing good cause for a protective order. Plaintiff first asks for a protective order denying Defendant discovery of system-wide searches of Plaintiff’s systems and custodians beyond what Plaintiff has already provided. Defendant argues in response that it has not asked Plaintiff to conduct additional searches. Rather, Defendant argues that it merely asked for confirmation that Plaintiff searched its systems for relevant ESI for forty-one employees who are either members of the Task Force assigned by Plaintiff to the recall issue, or who are listed in Plaintiff’s Rule 26 disclosures.

About those Additional System-Wide Searches…
The court concluded that Nissan was barking up the wrong tree. “Letter correspondence” proved that Johnson Electric did not ask for additional searches, but rather that Nissan merely confirm that the computers, email accounts, network shares, and databases associated with 41 specific custodians had been searched. The court ruled against Nissan here, because it couldn’t deny Johnson Electric something for which it hadn’t asked.

Data Sources that aren’t readily accessible
The court first noted Nissan’s description of its Identification protocol:

[] Plaintiff claims to have searched Outlook email data and PST files; hard drives on individual computers, network shares mapped as various drive letters; and the ANEMS, IDOCS, IDEAS, GCARS, WRAPS, CPIA, VHF, CICS PO system, and Legacy business databases. In addition, Plaintiff states that it identified key custodians who were likely to have responsive information relevant to this case and had their documents searched. Plaintiff also asserts that it requested documents and information from its non-party parent company, and that both it and its parent company searched hard copy files for paper documents, for documents stored on CD, DVD, or other external sources, and for physical parts.

Plaintiff has identified in table format electronic data sources identified by key custodians as being potential sources of responsive information and claims that it identified, processed, and produced responsive information from these systems. (Docket no. 79 at 4-7). Plaintiff contends that the only systems it did not search are its disaster recovery or backup systems for email, network shares, and business databases because they are not readily accessible.

Nissan argued that information on its back-up systems are not reasonably accessible because of “undue burden and cost,” evidently supported by an estimate submitted to court. Nissan further contended that searches over these sources wouldn’t produce any new data “because the information on these systems is duplicative of information on [Nissan’s] main systems,” which have already been examined.

The court quoted FRCP 26(b)(2)(B):

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue bur-den or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

The court agreed with Nissan that it had shown “that Plaintiff’s backup systems are not reasonably accessible and that Defendant has not shown good cause to search these systems.” Alas for Nissan, however, the court once again stated that Nissan’s argument were off point, stating that Johnson Electric did not appear to ask Nissan to search their back-up systems, but rather, “asked for Plaintiff’s backup policies, and its tracking records and requests for restores, claiming that data that has been restored is reasonably accessible.” The court concluded that Nissan had not shown “good cause” to preclude Johnson Electric from seeking discovery of this data. As Johnson Electric had not asked for searches of back-up systems, there was no reason for the court to grant Nissan’s request on that issue.

Retention Policies

The court quickly denied Nissan’s request to protect it from having to produce its retention policies, stating that Nissan failed to show “good cause” to preclude the production request.

Data Map

The court noted that Johnson Electric had asked Nissan for a data map “to show what data is stored on each of Plaintiff’s systems, who uses the systems, the retention of the data stored and where and how the data is backed up or archived.” The court further noted that Johnson Electric attempted to tie Nissan’s failure to provide the data map to non-compliance to the previously mentioned court order requiring supplemental production from Nissan.

FRCP 26 requires certain mandatory disclosures be made. Nissan claims that Johnson Electric has failed to commit to specific search terms or system limitations. The court warned Johnson Electric that if true, it could see no reason for such a failure. Beyond that, there was no connection between the previous court order and this request from Johnson Electric. This request, the court said, was for new material, separate and distinct from that associated with the earlier order. Although the court could not see compelling production of a data map, it again stated that Nissan had failed to show good cause to preclude production. The court, therefore, denied Nissan’s motion for a protective order, both on this part, and in whole.

Posted in 6th Circuit, Case Summary, Collection Protocol, Data Retention Practices, Duty to Disclose, E.D. Mich., FRCP 26(b), FRCP 26(c), Good Cause, Magistrate Judge Mona K. Majzoub, Objections to Discovery Requests, Protective Order, Reasonably Accessible, Undue burden or cost | 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: 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 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.

Posted in 2nd Circuit, Case Blurbs, Discovery Requests, Duty to Produce, FRCP 26(c), FRCP 37, Judge Louis L. Stanton, Objections to Discovery Requests, Relevance, S.D.N.Y, Scope of Discovery, Search Engine Technology, Source Code, Technology, Tools, Trade Secrets | Tagged: , , , | Leave a Comment »

Case Blurb: Cunningham; Relevancy, and Who has the Burden to Prove it

Posted by rjbiii on July 21, 2008

[P]ursuant to Fed.R.Civ.P. 26(b)(1), any discovery sought must be relevant. Relevancy is broadly construed, and a request for discovery should be considered if there is “any possibility” that the information sought may be relevant to the claim or defense of any party. See, e.g., Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D.Kan.2001). “When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure .” Simpson v. University of Colorado, 220 F.R.D. 354, 350 (D.Colo.2004) (citations omitted). Further, the objecting party cannot “sustain this burden with boilerplate claims that the requested discovery is oppressive, burdensome or harassing.” Id. (citation omitted). However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008 )

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery Requests, FRCP 26(b), Magistrate Judge Kristen L. Mix, Objections to Discovery Requests, Overly Broad Request, Relevance | Leave a Comment »

Case Blurb: Younessi; Court Fashions Protective Order to Allow for Discovery but Protect Trade Secrets

Posted by rjbiii on July 3, 2008

The Court is convinced that this need is strong enough to warrant discovery from [Producing Party] and the Motion to Quash is DENIED. However, some form of protective order is appropriate and the Court now turns to what form that production should take.
[…]
In situations involving information which is appropriately kept private, the Court may fashion restrictions on the form and method of disclosure. See Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Cal.1999). In the interest of protecting private information such as trade secrets or privileged documents, the Court can order the responding party’s attorneys to search for all documents consistent with the subpoena and to produce only those which are relevant, responsive, and do not disclose trade secrets. See, e.g., id. The Court finds in Playboy an appropriate model for this case. There, the plaintiff sought to copy the defendant’s hard drives after it learned she may have deleted emails which could potentially prove the knowledge element of plaintiff’s infringement claims. Id. at 1051. Defendant responded with concerns that privileged communications would also be recoverable under such a procedure. Id. at 1054. The court ordered the copying, but directed defense counsel to search the copy for responsive materials instead of turning over the copied drives themselves. Id. at 1055

Here, [Requesting Party] also requests to copy [Producing Party’s] hard drives, a process which might reveal not just privileged, but also trade secret information. Having [Producing Party] search its own computers is an appropriate compromise here because of the unique status of [Requesting Party] as a direct competitor and of [Producing Party] as a nonparty [third party] to the underlying suit. The elaborate copying which took place in Playboy is not necessary because there are no allegations of documents being destroyed and [Producing Party] has shown that it is responsive and willing to cooperate with [Requesting Party’s] reasonable requests.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Data Collection, Data Sources, Duty to Produce, Form of Production, Hard Drive Inspections, Judge Ronald B. Leighton, Objections to Discovery Requests, Overly Broad Request, W.D. Wash. | Tagged: , | Leave a Comment »

Case Blurb: Younessi; Court Weighs Trade Secrets’ need for Secrecy vs. Discovery’s Need for Disclosure

Posted by rjbiii on July 3, 2008

[Producing Party] claims that production of its hard drives would necessarily reveal its trade secrets. Trade secrets have long been recognized as property. Because of their fleeting nature, once trade secrets are disclosed to outside parties they lose their value and the property right is extinguished. The Court recognizes [Producing Party’s] interest in keeping its trade secrets out of the public eye, and particularly away from its competitors.

[Requesting Party’s] request for [such records] are highly relevant. Even if [Producing Party] cannot reasonably produce the actual content of communications, [Requesting Party] could use records produced which indicate dates and times of communications for purposes of deposition and cross examination. Given the nature of [Requesting Party’s] allegations, it is reasonable to assume that none of the witnesses to such communications will be forthcoming in testifying without some of the information sought through discovery to direct their questioning. This meets the “good cause” standard.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 at *2 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Duty to Disclose, Duty to Produce, Good Cause, Judge Ronald B. Leighton, Objections to Discovery Requests, Trade Secrets, W.D. Wash. | Tagged: , | Leave a Comment »

AL Case Blurb: Ex Parte Vulcan Materials; Limits on the Scope of Discovery

Posted by rjbiii on June 21, 2008

Post Process-This is a Case Blurb from the State of Alabama, whose laws regarding discovery will differ from those of the Federal Courts.

“‘The first step in determining whether the court has [exceeded] its discretion is to determine the particularized need for discovery, in light of the nature of the claim.'” Ex parte Henry, 770 So. 2d 76, 80 (Ala. 2000) (quoting Ex parte Rowland, 669 So. 2d 125, 127 (Ala. 1995) (emphasis added)). To be relevant to a constitutionally sanctioned punitive-damages review, any extraterritorial conduct of the defendant “must have a nexus to the specific harm suffered by the plaintiff.” Campbell, 538 U.S. at 422 (emphasis added). An action in one state may not be “used as a platform to expose, and punish, the perceived deficiencies of [a defendant’s] operations throughout the country.” Campbell, 538 U.S. at 420. “A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff ….” 538 U.S. at 422-23. This is so, because, “as a general rule,” a State does not “have a legitimate concern in imposing punitive damages to punish defendants for unlawful acts committed outside of the State’s jurisdiction.” 538 U.S. at 421. Thus, a litigant may not seek to support a punitive-damages award through discovery aimed at generic, undelineated out-of-state conduct.

[…]

Furthermore, discovery requests must generally be subject to reasonable temporal limitations. In Ex parte Orkin, we said:

“No bright line exists concerning the maximum period over which a litigant should be required to search for records. The length of that period depends on whether the records being searched are ‘relevant to the subject matter involved in the dispute.’ Rule 26(b)(1), Ala. R. Civ. P.; 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2008 (1994). Even then, a litigant in a fraud action must show a substantial need for discovery of records that concern transactions with nonparties, that are older than five years, and that do not directly relate to the litigant’s own claim or defense.”

Ex parte Vulcan Materials Co., 2008 Ala. LEXIS 79, 19-20 (Ala. Apr. 25, 2008 )

Posted in AL Sup. Ct. Justice Thomas A. Woodall, Alabama, Case Blurbs-AL, Discovery Requests, Objections to Discovery Requests, Overly Broad Request, Scope of Discovery, State Courts | Leave a Comment »

Case Blurb: Prof’l Basketball Club; Burden of proving objection to discovery requests falls to movant

Posted by rjbiii on March 11, 2008

In opposing discovery on the grounds of overbreadth, a party has the burden “to provide sufficient detail in terms of time, money and procedure required to produce the requested documents.” A “court must be able to ascertain what is being objected to. As such, unless it is obvious from the wording of the request itself that it is overbroad, vague, ambiguous or unduly burdensome, an objection simply stating so is not sufficiently specific.” A claim that answering discovery will require the objecting party to expend considerable time and effort to obtain the requested information is an insufficient factual basis for sustaining an objection.

Here, [Producing Party] has not explained why producing the emails at issue would be unnecessarily burdensome, but merely states that producing such emails “would increase the email universe exponentially[.]” PBC also states in its moving papers that the emails add “nothing to the case except mountains of work for no return.” But a bald assertion that discovery will be burdensome is insufficient in light of Fed.R.Civ.P. 26(b)(2)(B). The Court is not permitted to presume the potential burdensome effects upon a party. The parties have already agreed upon a group of search terms that [Producing Party] previously used to search [key players’] emails and the Court assumes those terms may be used again to make further searches efficient.

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)(emphasis added)(citations removed).

Posted in 9th Circuit, Case Blurbs, Discovery Requests, Duty to Produce, FRCP 26(b), Judge Marsha Perchman, Objections to Discovery Requests, Overly Broad Request, Undue burden or cost, Vague Discovery Requests, W.D. Wash. | Leave a Comment »