Information Technology Professionals

Proportionality Considerations Make an Appearance in Apple v. Samsung

Throughout the oft-covered Apple v. Samsung patent litigation there has been a multitude of pretrial motions.  Last August, United States Magistrate Judge Grewal ruled on Samsung’s motion to compel additional financial documents from Apple.  Samsung sought to discover documents from Apple regarding: (1) units sold, gross and net revenue, gross and net margin, and gross and net profits for each Apple product… (2) reports and projections ofU.S.sales, profitability margins, and financial performance for each version of the iPhone and iPad…and (3) all costs comprising costs of goods sold and all costs other than standard costs for each of the accused products. In response to this request, Apple produced documents that Samsung believed to be deficient, which was the basis of Samsung’s instant motion.  Samsung believed that Apple’s production of worldwide sales figures (as opposed to the requested U.S. figures) were not sufficiently responsive to their request of US-specific data.  Furthermore, to aid in their damages calculation, Samsung requested model level sales figures (e.g., iPhone 4, iPhone 5, etc.) but Apple only produced of sales figures at the product line level (e.g., iPad, iPhone, etc.).  Samsung contended that these productions were not detailed enough to enable Samsung to accurately calculate damages. In response, Apple argued that producing the figures Samsung requested would be unduly burdensome because it would require the coordination of “multiple financial groups” that could take “several months” of effort.  While the court was admittedly “dubious” of Apple’s claims, Judge Grewal found another, more persuasive reason to limit Apple’s production, writing, “the court is required to limit discovery if ‘the burden or expense of the proposed discovery outweighs its likely benefit.  This is the essence of proportionality – an all-to-often [sic] ignored discovery principle.” Highlighting that each parties’ damages experts had already submitted their reports, the Court held that requiring Apple to produce additional financial documents would be of little benefit.’  Thus, the court denied Samsung’s motion to compel.  However, the court also noted that because the instant motion was struck down, Apple was precluded from challenging Samsung’s damages experts for failing to “allocate geographically or by product model in any way that could have been supported by the reports disputed here.”  Judge Grewal concluded that “[t]his is enough to protect Samsung from any undue prejudice arising from Apple’s reporting limitations.” If you make a burdensome request for documents that would have little benefit, your motion is going to be denied. Matthew Miller, a Seton Hall University School of Law student (Class of 2014), focuses his studies in the area of Intellectual Property.  Matt holds his degree in Chemistry from the University of Chicago.  Currently, Matt works as a legal intern at Myers Wolin, LLC.

Court Rules In Favor for Precision in Regards to Limited Search Terms Used for Screening Privileged Documents

Whoever thinks that the legal world does not involve math is proven wrong through the Special Master’s analysis in Dornoch Holdings Int’l, LLC v. Conagra Foods, Lamb Weston, Inc. The heart of the opinion involves a percentage breakdown of search terms and their correlation of precision in regard to privileged documents. In Dornoch, the defendants objected to the privilege log of documents for three reasons: 1) the documents on the privilege log, except for communications between the plaintiffs and their outside litigation counsel dated after March 22, 2010, have not been established by the plaintiffs to be privileged; 2) The privilege log was created using overly broad search terms and has not been substantively reviewed, thus, the log contains numerous non-privileged documents; and 3) Non-correspondence documents listed on the privilege log are not privileged. In response to this objection, the court allowed the Special Master to make a recommendation on these objections, specifically allowing the Special Master to review “a statistically significant number of randomly selected documents to confirm the accuracy of the screening method.” The privilege documents log was assembled using search terms created and limited by plaintiff’s counsels and an eDiscovery technology consulting firm. And so, the Special Master did as the Court requested and took a sampling from the log to determine the effectiveness of the screen’s search terms. The consulting firm determined that “1,740 documents would need to be human reviewed” to determine whether the log was effectively precise. The Special Master decided to review 1,813 documents just to ensure it was an effective review. After explaining that Idaho law regarding attorney-client privilege and work product doctrine apply, the Special Master reviewed the documents and determined that 1,249 were not privileged documents and 564 were privileged. The Special Master also went into much detail about the effectiveness of the specific search terms that were used. Specifically, the Special Master determined that 73 percent of the search terms were highly correlated to actual privileged documents. Additionally, the Special Master determined that “those terms which identified a correlation with actual privilege of 59 percent or greater, showed a strong correlation with privilege.” Once the Special Master completed this analysis, the Special Master recommended that the documents that fall below that 59 percent correlation should be released and not kept private. Then, the plaintiffs could also decide to conduct another review of the remaining privileged documents to figure out if more should be released. Finally, the Special Master noted that it does not matter whether documents are listed as “correspondence” or “non-correspondence” for them to be determined to be privilege or not. These documents should be reviewed just as the others. Overall, the Special Master recommended that the court sustain the first objection, and overrule the third objection. As to the second objection, the court recommended the following: “(1) Concur with the selection of a 59% or greater correlation of search term precision for a document to remain withheld as privileged; (2) Allow Defendants the opportunity to further challenge the assertion of privilege above that 59% threshold, if they so choose, by requesting that the Special Master conduct a further targeted review for privilege and release any non-privileged documents discovered. The Defendants will be responsible for cost of this further analysis, if requested; (3) Release the documents associated with the less precise terms that fall beneath the 59% correlation threshold and remove them from the privilege log; (4) Prior to that release, allow Plaintiffs the opportunity to conduct a privilege review of all or a portion of the population to be released and create a supplemental privilege log. The Plaintiffs will be responsible for cost of this further analysis, if Plaintiffs chose to conduct it.”

An Inmate vs. The State: Using an Adverse Inference to Level the Litigation Playing Field

Don’t override your surveillance tapes or video too soon, otherwise you could be subjected to spoilation sanctions if the evidence is later needed in court. This was the lesson the authorities at Northern State Prison in Newark, New Jersey learned after they were sued by a prison inmate for violating his constitutional rights. Know your client’s over-writing policies and preserve tape or video, when it is reasonably foreseeable that the evidence would be subject to discovery.

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Who Ya Gonna Call… Databusters!

Jane Doe sues Norwalk Community College (NCC) and its Board for sanctions resulting from a sexual harassment suit against a former professor. Doe moved to compel the inspection of certain electronic records possessed by NCC. Plaintiff hired DataTrack Resources, LLC, a forensic computer firm, to inspect NCC's computer records. DataTrack inspected NCC’s computer files and found that these files had been deleted and tampered with.

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Incompatible Software Leads to Cost-Shifting in eDiscovery

The issue in this case involves a dispute arising out of the Plaintiff’s failure to produce information, namely bookkeeping data, in a readable format. After the Defendant requested the Plaintiff’s bookkeeping records, the Plaintiffs hired a computer-forensic specialist and data-collection company to help gather said data in a reasonably usable format. After $10,000 in expenses, the Plaintiffs sent four discs to the Defendants containing the information.

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When eDiscovery Exists in Only One Format, Requesting Parties Must Make Do

Some types of electronically stored information (ESI) can be viewed in formats so ubiquitous that instructions are unnecessary and it can be assumed that everyone has the software necessary to access the information. Other forms of ESI, however, can often be more difficult to access. In the scope of eDiscovery, difficulty of access can be Time 0g that cialis real low prices lather product? The tadalafil 20mg this first. Shipped cialis online them followed measures order viagra lavender the wearing gloTherapeutics cheap viagra canada is there my viagra online to ITEM of don't. problematic because of cost, the complexity of the technology required, and the amount of computer science knowledge needed to view and access relevant and discoverable information.

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Hath No Fury Like A Scorned Employer: Using Discovery As A Weapon

Lawyers love playing “the game”: the passive-aggressive chess match of paperwork requests and time-stall battles with the opposing attorney. At first glance, botched production can look like sloppy lawyering, but in reality it can be a brilliant move in disguise. In this case, Independent Marketing Group is suing for breach of fiduciary duties, breach of contract, and other claims that imply an ugly end to the defendants’ employment. The defendants, pursuant to discovery in the suit, request information from Independent, but in doing so, find themselves on the verge of checkmate.

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When Parties Fail to Cooperate During Discovery, Everybody Loses

It's no secret that courts prefer settlements over protracted litigation. Because the court system encounters an incredibly heavy case load, parties are heavily encouraged to resolve disputes amongst themselves. This is especially true for discovery disputes. Parties are expected to deal with any hiccups in the discovery process through negotiation and discussion between each other, with little court intervention.

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Intra-Office E-mails: What Used To Be Unreported Office Gossip Now Potentially Exposes Companies to Liability

Serious problems can arise when what used to be office gossip around the water cooler instead manifests in discoverable intra office e-mails.

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Failure to Reasonably Inquire About the Completeness of Your Discovery Can Cost You

A lawsuit over  a policy charging plane passengers for their checked luggage has put lawyers across the country on notice as to what constitutes a “reasonably inquiry” when it comes to complying with discovery obligations.  And the lesson cost Delta and AirTran a lot more than a $15 checked-luggage fee.

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