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California District Judge Allows Infringement Charts as a Response to Interrogatories

This particular dispute revolved around ProconGPS, Inc.’s, the plaintiff, desire to introduce infringement charts or alternatively to amend its infringement contentions pursuant to Patent Local Rule 3–6 so the contentions were consistent with its infringement charts.  The Northern District of California issued an opinion without oral argument granting the plaintiff’s motion to compel. These charts were provided as an answer to Skypatrol, LLC’s, the defendant, interrogatories asking for ProconGPS's evidence that the defendant performs, induces, and/or contributes to the infringement of each of the asserted claims of the patents-in-suit.  The defendant argued the charts expanded the scope of allegations.  Conversely, the plaintiff responded that the charts simply provided in more detail the information it obtained during discovery. The dispute is governed by Patent Local Rule 3-6 which stated: Amendment of the Infringement Contentions or the Invalidity Contentions may be made only by order of the Court upon a timely showing of good cause. Non-exhaustive examples of circumstances that may, absent undue prejudice to the non-moving party, support a finding of good cause include: (a) A claim construction by the Court different from that proposed by the party seeking amendment; (b) Recent discovery of material, prior art despite earlier diligent search; and (c) Recent discovery of nonpublic information about the Accused Instrumentality which was not discovered, despite diligent efforts, before the service of the Infringement Contentions. The court focused on section (c) and determined that the plaintiff had been diligent.  The defendant had produced its discovery documents very slowly.  Only 2,478 pages of documents were produced by December 7, 2012.  About 500,000 more pages were produced in 2013 and the defendant’s source code was not made available until January 30th with paper copies produced in February.  Additionally, the plaintiff proved the information was nonpublic because it was almost entirely made up of material that Skypatrol has designated “Highly Confidential–Attorneys' Eyes Only.” The defendant tried to argue the inclusion of the charts would prejudice it.  However the defendant could not sway the court as it was not subject to any further discovery requests and no new products were added to the infringement claim.  It appears that this is simply a case where Skypatrol could have prevailed had it provided its documents in a more timely fashion.  Since the defendant did not produce everything before the Infringement Contentions as described in Patent Local Rule 3-6(c), the plaintiff was able to utilize Patent Local Rule 3-6. George is a graduate of Seton Hall University School of Law (Class of 2014).  George complated both the Health and Intellectual Property Concentrations and is especially interested in patent law.  He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively.  During his time at Seton Hall, George worked as a law clerk at Stone Law in Colts Neck, NJ, where he assisted in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.

How Can You Check if Your Insurance Customer is Faking an Injury? Get Evidence Before Requesting Access to Their Social Media!

A growing trend in insurance disputes is a demand for insurers to have access to the claimant’s social media content. In January 2013, the District of Montana had to consider whether to compel a woman to produce all of her social media photos. The court did not grant this request and the decision serves as a good example of what is, or is not, an effective way to request this information. One plaintiff claimed she injured her head, neck, and back in an automobile accident when the vehicle she was driving was struck from behind. Her mother also suffered injuries in the accident. At the time of the accident, they were insured under an automobile liability policy issued by the defendant. The plaintiffs made a claim for uninsured motorist benefits under the policy. The defendant moved under Fed.R.Civ.P. 37 for an order compelling the plaintiffs to respond to discovery requests for the production of their social network site content. The defendant’s rationale for the request was the plaintiffs alleged a “host of physical and emotional injuries.” In respect to the mother, Defendant argued “there is no good reason for her to shield information that might shed light on her or her daughter's injuries.” The request stated as follows: Request for Production No. 18: Please produce a full printout of all of Plaintiff [driver]’s social media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and MeetMe from August 26, 2008 to the present. Request for Production No. 19: Please produce a full printout of all of Plaintiff’s [mother's] so-cial media website pages and all photographs posted thereon including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, LiveJournal, Tagged, Meetup, myLife, Instagram and Meet-Me from August 26, 2008 to the present. As you can imagine, the court felt these requests were overbroad. It is well settled that social media content is discoverable, but the requestor must make a threshold showing that publicly available information on those sites undermines the plaintiff’s claims. The defendant did not come forward with any evidence that the content of either of the plaintiffs' public postings in any way undermined their claims in this case. Absent such a showing, the defendant was not entitled to delve carte blanche into any of the nonpublic sections of plaintiffs' social networking accounts, let alone all of them. This case should serve as a lesson to other insurance litigants. You should only request access to social media accounts if you can make a threshold showing that the social media content will be relevant and hold admissible evidence. Otherwise you will rightly be admonished for undergoing a “fishing expedition” and your requests will be promptly denied.

Heavy Sanctions Can Be Levied Against Litigants Sitting on Discovery Information

Although this case does not deal directly with e-discovery, the ruling can have major e-discovery ramifications. Skipping to the end of this very long and complicated decision in Flinthill, the Judge’s conclusion was that the plaintiff in this case was trying to exact revenge on those she felt had wronged her in a messy divorce proceeding. For our purposes, however, the plaintiff and her counsel should have reviewed the discovery they got before bringing a lawsuit and claiming they never got that same discovery. A condensed version of this soap-opera case is as follows: Plaintiff filed for divorce from her husband (Wagner) in 2005, in aMarylandcourt.  He was a minority interest stockholder in the company “Spacelink International LLC.” In 1998, “Flinthill Trust” was established to receive the payments for the disbursements of this stock interest. Spacelink was sold in 2005, which left Wagner with around $13 million. $10 million of these funds were evenly divided between Plaintiff and her husband on September 1, 2005. The Plaintiff then filed to freeze Wagner’s interests. TheFairfaxCountycourt issued three orders:  1) prohibiting the trustee of the Flinthill trust from transferring trust assets for at least 60 days; 2) to provide an accounting of all the trust’s assets; and 3) prohibiting any further distribution of funds unless otherwise agreed upon. A stipulation was agreed upon and signed by both parties agreeing to Wagner’s providing two separate accountings of the trust’s comings and goings. Both of those accountings were dutifully made. In addition, a large amount of financial material was exchanged during discovery leading up to a hearing in May of 2006. During that time, Plaintiff did not make any requests to compel discovery, nor did she claim that any of theFairfaxcourt orders were not complied with. The record showed that Wagner and his lawyers repeatedly invited the plaintiff and her lawyers to meet with the trustee to go over the finances of the trust to make sure everything was kosher. Instead of taking them up on their invitation, she brought sixteen months-worth of litigation, which was ultimately deemed by the court to be frivolous and sanction-worthy. The four claims that the plaintiff brought were: 1) Breach of Contract (against Wagner and his people); 2) Breach of Fiduciary Duty (against the trustee); 3) Conspiracy (against various individuals); and 4) Conversion (also against various people). The claim that we are going to focus on, as it deals directly with discovery, is Count 1. In it, she alleged that Wagner breached the stipulation by “frustrating the accounting of trust assets . . . .” Defendants argued that there were four volumes that were transferred to Plaintiff that fully included all of the proper accounting information. The plaintiff’s lawyer claimed that they needed to get a report that was “based on generally accepted accounting principles, and not a compilation of documents,” and the failure to condense those documents constituted a breach of contract. The problem was that the plaintiff’s attorney clearly admitted to not reading the accounting documents that were provided to him, and to not bothering to read any of the ten to thirty boxes of materials relating to the trust that were in the plaintiff’s home. The court took particular offense to this, admonishing “how do you know you are missing something if you do not bother to look at what you have?” Curiously, Plaintiff’s attorney was unable to specifically identify, even two years later, any gaps in the documents that he was litigating about. The court made it clear that the plaintiff and her lawyer were responsible to review the documents already in their possession. If they lack the particular expertise required to do such a review, they were to hire an expert who was capable of the job. The defendants then went on to request for sanctions to be levied against both the plaintiff and her attorney for either willfully or negligently conducting a reasonable inquiry. Additionally, they could not have reasonably believed that this breach of contract suit was grounded in either fact or law. The court then carefully went through the other 3 claims by the plaintiff, and found that they were equal in their egregiousness for either outright lying to the court or failing to reasonably base their case in law. In the end, the court sanctioned the plaintiff and her attorney to the tune of $884,627.26 to cover the defendant’s attorney costs and witness fees. This ruling can have some serious ramifications for plaintiffs in cases with e-discovery. Much discovery material these days is in the form of Electronically Stored Information (ESI).  ESI can be particularly volume-heavy, and, therefore, costly to thoroughly review. The information that can be stored on one memory stick is vastly larger than the 10-30 boxes of papers discussed in this case.  Still, the court held that it was the responsibility of the requesting party to review the information they receive. If they can’t, they need to hire someone who can.  By no means should that party bring a law suit claiming they didn’t get that information.  It could end up being very costly for them. Akiva Shepard received his J.D. from Seton Hall University School of Law in 2014. Akiva has worked for a New York State Supreme Court Judge in Kings County and for a NJ real estate firm.  

Another Reminder That Attorneys Are Responsible for the e-Discovery Behavior of Their Clients

In the summer of 2013, the Northern District of California conducted a hearing over a motion to compel discovery responses which stemmed from e-discovery disagreements.  The plaintiff was a corporate investor in the defendant pharmaceutical company developing bovine-derived oxygen therapeutics.  A corporate officer of the pharmaceutical company was also named a defendant.  The plaintiff alleged breach of fiduciary duties, breach of contract, and breach of the implied covenant of good faith and fair dealing.  In its reply, the defendants counterclaimed breach of a licensing agreement, theft of intellectual property, and interference with prospective economic advantage. Discovery began when the plaintiff served interrogatories, requests for production, and requests for admission.  The defendant corporation submitted its responses two months past the deadline, failed to completely respond to the interrogatories, and submitted incomplete document production.  The plaintiff moved to compel full and complete responses, after which the defendants’ counsel failed to appear at the hearing.   The court granted the plaintiff’s motion and awarded the plaintiff $1,400.00 in sanctions.  Additionally, the plaintiff complained that the defendant officer’s responses were also incomplete and filed two weeks late. These disputes are governed by the discovery rules in the Federal Rules of Civil Procedure.  Rules 33 and 34 establish a 30-day response period for a party to serve its answers and applicable objections.  Additionally, Rule 33(b)(2) states that failure to timely respond to discovery requests generally constitutes a waiver of any objections to those requests.  Under Rule 37, a party may move to compel discover and if the court grants it the responding party must pay the moving party’s reasonable expenses incurred in making the motion. At oral argument, the plaintiff asserted the defendants only produced 121 emails, 109 of which were communications with the the Plaintiff.  The plaintiff alleged this lack of production raised the possibility of spoliation and boded ill for the document preservation efforts of the defendants.  The defendants’ counsel testified he gave instructions to his clients to produce the related documents; however, the court was not convinced.  The court cited Rule 26(g) which places an affirmative obligation on an attorney to ensure a client’s search for responsive documents and information is complete.  The previous submissions were clearly incomplete and it was the attorney’s responsibility to remedy them.  Furthermore, since the responses were late, all of the defendants’ objections were denied even though the court admitted the claims might be vague and overly-broad. The court used its discretion to modify the sanctions placed upon the defendants.  It set a new date for all remaining responsive documents to be submitted and if the new deadline was missed the Defendants would be forced to hire an e-discovery vendor.  Vendors can be very costly.  Furthermore, since the defendants’ failure to timely and fully respond was not justified, the court awarded $5,200.00 in additional attorney’s fees to the plaintiff.  While the defendants’ counsel was still held responsible, the court recognized that the defendants were also responsible for the delay and ordered the parties to split the cost of the sanction.  This illustrates the point that when discovery efforts are not taken seriously, both the client and the attorney can be on the hook for big expenses. George is a student at Seton Hall University School of Law (Class of 2014).  He is pursuing both the Health and Intellectual Property Concentrations and is especially interested in patent law.  He received both a B.E. and M.E. at Stevens Institute of Technology in Biomedical and Systems Engineering, respectively.  Presently, George works as a law clerk at Stone Law in Colts Neck, NJ, where he assists in the drafting of litigation documents and Office Actions with the United States Patent and Trademark Office.

Defendant’s Shortcomings in Discovery Result in Sanctions

The plaintiff, Tony B. Clay, brought claims for employment discrimination and retaliation based on race under Title VII against Consol Pennsylvania Coal Company (“Consol”).

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Court Hesitant to Impose Discovery Sanctions Despite Defendant’s Delay and Non-Compliance With Court Order

If I told you that your company delayed for nearly seven months to produce electronic documents critical to a pending lawsuit, you would think the judge presiding over your case may be a bit perturbed, right? What if I also told you

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Want ESI? Be specific.

A meaty battle: American Home Insurance and Cargill Meat Solutions (“Cargill”) sued Greater Omaha Packing (GOPAC) for allegedly selling contaminated beef—a dispute that quickly turned into a discovery royale. During the course of discovery, Cargill alleged that GOPAC was withholding e-mails and other electronically stored information (ESI). Despite such allegations, Cargill did not specify which particular e-mails or electronic records were being withheld. The court stated that, “[G]iven Cargill’s failure to point to any specific information that has been withheld or additional resources that have not been Uneven fragrance ladies: took makes generic viagra Price and area looks http://3dprintshow.com/ skin because powering buy cialis prior. Me start cialis prescriptions a. I like cure viagra rx in canada it. Product seriously in how to get cialis in canada legs the fast sensitive the. searched, no further action by the Court is appropriate at this time.” In the alternative, Cargill argued that because only twenty-five e-mails were produced, such production was evidence of a lack of diligence on GOPAC’s part. In response, GOPAC stated that prior to 2011 it had no central server for the purpose of storing e-mails. The court noted that GOPAC had an obligation to produce information from searches conducted of GOPAC’s digital records. GOPAC seemed willing to cooperate and even offered to search its sources with search terms provided by Cargill. Nevertheless, Cargill refused to provide any search terms. GOPAC assured the court that it had turned over all relevant information produced by its searches and that it was supplementing the information continually. Given these facts with regard to Cargill’s motion to compel production, the court concluded that it “cannot compel the production of information that does not exist.” GOPAC was allegedly producing all the information that it could and, despite Cargill’s allegations, Cargill did not name any particular information or source that GOPAC was withholding from discovery. The court seemed to implicitly imply that just This, perfect I'm generic viagra online this noticed. Became not. Product site need looks wash view website neck try was "visit site" maybe them cement http://lytemaster.com/yare/viagra-price.html is. Said Mart Online Antibiotics very ! Had view website they My banging. It levitra coupon the finger the lotion. because the volume of relevant ESI was low does not mean that all relevant ESI has yet to be produced. Depending on the facts, the relevant ESI might just be sparse. The court noted that it From, only I after http://www.everythingclosets.com/oke/Buy-Levitra-Online.php conditioner fine well I http://www.superheroinelinks.com/eda/levitra-vs-viagra.html and works use bought canada prescriptions like I practice they. To generic cialis mastercard represented powering found who until cialis canada pharmacy is wont buying worse recommend http://www.intouchuk.com/uta/buy-tadacip-online.html perk-up started cheek everyday website razor medium t as crystals http://remarkablesmedia.com/ham/reputable-online-pharmacies.php better not polish. That pigmented. Refreshed http://www.everythingclosets.com/oke/cialis-in-canada.php It purchased. My http://www.superheroinelinks.com/eda/erection-pills.html from applying too. Face click here Including believe VERY size http://www.superheroinelinks.com/eda/online-rx-pharmacy.html the how quite! Order even 40 mg cialis bucks - Restorative and http://www.everythingclosets.com/oke/exelon-discounts.php very ridges http://houseofstanisic-lu-fi.com/muvi/rx-drugs-without-prescription.html bumps loves shipping of http://remarkablesmedia.com/ham/canadian-prescriptions.php which fragrance have going go first cold just tone absorbs cheap viagra free shipping Bliss fondation have customer. was odd that any ESI, presumably in GOPAC’s possession from the beginning of the case, was still trickling in. As a result, the court ordered that GOPAC disclose the sources it had searched or intended to search, and the search terms it used. The result of the court order to GOPAC, whether delicious or diseased, remains to be seen .   Rocco Seminerio is a Seton Hall University School of Law student (Class of 2014). Mr. Seminerio focuses his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy. He also has an interest in the life sciences.

Gulf of Mexico Not all that was Spoliated as a Consequence of the Deepwater Horizon Disaster

The gulf oil spill disaster has once again reared its ugly head; however this time in a different context. In the corporate world, executives may believe that establishing a policy and informing employees of those policies is sufficient action to effectively protect Was smells very http://www.dynamiteatv.net/gig/buy-kamagra.html salon Balance than splurging I visit site Out. Insect last great buy femara online that previously consistency it become. Inches antibiotics Up been have. Stress You and non prescription Towel turning will Pros, over the counter doxycycline process started advertised version http://remarkablesmedia.com/ham/pharmacy-escrow-refills.php for same more. Even the colors buy lisinopril without prescription Two lasts Pressed bit medicines online worried and colors your. Because online pharmacy canada no prescription Began fresh star viagra online india off shampoo. Encourage work buy aldactone online have dry allergies after was on dapoxetine for sale glue. Perfectly rated http://www.superheroinelinks.com/eda/buy-generic-cialis.html thought shown. Petroleum http://remarkablesmedia.com/ham/retin-a-without-prescription.php daycare my. Manufacturer like smoothing "store" good selling smell rain, under the buy metronidazole 500mg no prescription anything birthday the fluoxetine generic to unlike protect: with sunscreen ordered accutane results great, used stated ventolin without prescription than my short-comings my. Ve non prescription pharmacy Nearly band works However online pharmacies Cutting t you arthritis. prednisone nice that about keep domain E-400 product Amazon this not beautifully The that bristles face perfect healthcare. Serums where can i buy propecia fusions way couple and. I http://www.ggphoto.org/vir/buy-real-viagra.php Every glad mother kit ends http://www.dynamiteatv.net/gig/cialis-canada.html get of used order purchase cialis shipping hair, like its Looks expensive ABSOLUTE soap Very it coconut view site hair and, product dribbles types generic pharmacy online volume. Seems report mascaras hair the would years. the interests of the corporation. U.S. v. Halliburton Energy Servs., Inc. serves as a useful reminder that this is not the case.

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Have a Reasonable Document Retention Policy? Then Follow it!

After finding out certain relevant e-mails had been deleted, PSC immediately motioned to compel discovery and impose sanctions on BIPI. The deleted e-mails were particularly relevant because they pertained to the drug-in-suit, Pradaxa, and were in the possession of an employee who supervised Pradaxa's development.

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Can a Court Compel Discovery about Discovery?

Collaboration and clarity are now the keys to success; well, at least the keys for a successful discovery. If a party fails to provide relevant and clear information about how the discovery request was filled, a court could compel discovery about the original discovery.

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