Discovery

News & Analysis as of

Additional Discovery Granted

In ARRIS Group, Inc. v. C-Cation Technologies, LLC, IPR2014-00746, Paper 15 (July 24, 2015). the Board actually granted additional discovery of an indemnification agreemenet between Petitioner and Com-Cast, which the patent...more

S.D.N.Y. Issues Spoliation Sanctions Against Foot Locker

The sanctions recently levied against Foot Locker serve as a potent reminder that understanding data and document preservation requirements is imperative. A New York federal judge issued sanctions against Foot Locker last...more

The 'Inexorable March' Toward Disclosure of Risk Management Materials

A reminder for risk managers at hospitals and other healthcare organizations in Virginia and elsewhere: Plaintiffs’ attorneys can win access to risk management information long considered protected and internal—including...more

Monkey See, Monkey Do? Like Federal Courts, New York State Courts Are Changing the Rules Governing E-Discovery

As new and proposed rules regarding e-discovery in the Commercial Division of the New York State Supreme Court demonstrate, state courts are catching up to the federal courts in terms of e-discovery standards and guidelines...more

The Mystery of the Federal Circuit Advisory Council’s Short-Lived Model Orders

In July 2013, the Advisory Council for the US Court of Appeals for the Federal Circuit, a committee that includes Federal Circuit litigators, law professors, court clerks, and government attorneys, issued a “Model Order...more

Walker Digital v. Google: Stay Pending CBM Review Denied Where Discovery Was Complete and Stay Would Prejudice the Plaintiff

After the PTAB instituted a CBM review of the patents-in-suit, Google sought a stay of the litigation pending resolution of CBM review by the PTAB. The district court explained that "[c]ourts consider four factors when...more

Court Finds Communications With Reinsurers Discoverable In Coverage Dispute

A federal court in Minnesota determined that an umbrella insurer’s communications with its reinsurers are discoverable in a coverage dispute. The case is titled National Union v. Donaldson Co., and the focus is on the scope...more

The Gambler Breaks Even: Tax Court Orders Indiana Department Of Revenue To Answer Discovery Requests But Denies Taxpayer’s Second...

The Tax Court does not often address discovery issues in published decisions and orders. In this case, Popovich v. Indiana Department of State Revenue, Cause No. 49T10-1010-TA-53 (April 24, 2014 and June 4, 2014), the Court...more

In ESI Discovery: Are keywords, concepts and other searches simply antiques?

The discovery of electronically stored information (ESI) is loaded with potential pitfalls and failure unless the parties add two components to the mix: cooperation and collaboration. Lacking those components, ESI discovery,...more

The Party Seeking Discovery Has the Burden to Show Need for the Discovery

In SAP America, Inc. v. Versata Software, Inc., CBM2013-00042, Paper 32 (July 10, 2014), the Board denied Versata discovery of the software corresponding to the documentation....more

The Fix on Fixed Fees

One of the biggest problems law firms and corporate clients face is the unpredictable nature of costs associated with e-discovery, since all it takes is for one large and/or unpredictable case for expenses to skyrocket. In...more

Are you Certifiable?

It is not unusual for opposing counsel to demand that you “certify” that your client’s document production is complete and correct. What does this mean? Are you required to do it? The issue often arises in...more

Noteworthy Changes to the Federal Rules of Civil Procedure Regarding E-Discovery

The proposed amendments to the Federal Rules of Civil Procedure (“Rules”) we have all been waiting for have finally been approved by the Committee on Rules of Practice and Procedure (“Standing Committee”). Before these...more

Board Allows Rare Motion for Additional Discovery

In a relatively rare grant of a Motion For Additional Discovery, in Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc. (IPR2013-00453,, Paper 40), Patent Owner sought additional discovery pertaining to its contention...more

Eleventh Circuit Affirms District Court’s Decision Allowing Discovery For Use In Foreign Proceeding

The Eleventh Circuit affirmed a decision permitting discovery for use in foreign proceedings which were contemplated but not yet pending. In this case, which arose from a billing dispute between Consorcio Ecuatoriano de...more

ESI Discovery Best Practices, Part 3: You’ve identified ESI, now how do you go about collecting it?

My last blog generally addressed the rules applicable to best practices as to identification of Electronically Stored Information (ESI). Once the data identification process is complete, the next step is to determine...more

A Party Needs Compelling Reasons for Discovery

Permobil, Inc. v. Pride Mobility Products Corporation, IPR2013-00407, Paper 43 (July 2, 2014), the Board denied the patent owner’s motion to compel production evidence of copying of the products embodying patent owner’s...more

ESI Discovery Best Practices, Part 4 – Collection of ESI – Who should be doing it?

There is an ongoing debate about who should conduct ESI collection. This is critical, primarily because if collection is done improperly, it could lead to inadmissibility at trial, sanctions or both....more

A Primer on Technological Advances in E-Discovery

“E-discovery is pervasive. It’s like understanding civil procedure. You’re not going to be a civil litigator without understanding the rules of civil procedure. Similarly, you’re no longer going to be able to conduct...more

Lessons From A Cautionary Tale of Electronic Discovery Pitfalls in Health Care Litigation

E-discovery is especially challenging in healthcare related litigation due to the healthcare industry’s reliance on electronically stored information (ESI), the volume of medical records often at issue in health care...more

Argentina Ruling Doesn't Address Non-FSIA Discovery Limits

In its latest decision interpreting the Foreign Sovereign Immunities Act (FSIA), the U.S. Supreme Court made clear that any claim of immunity by a foreign state must rise or fall based on the text of the FSIA. Because the...more

Donald Trump Sanctioned for Failure to Disclose Insurance Policy In Ft. Lauderdale Condo-Hotel Case

Last week, Judge Kathleen Williams of the U.S. District Court for the Southern District of Florida granted plaintiffs’ motion for sanctions against Donald Trump for his initial failure to disclose a relevant insurance policy...more

US Court of Appeals backtracks from application of §1782 discovery in international commercial arbitration

In a surprising reversal, the United States Court of Appeals for the Eleventh Circuit has vacated its ruling in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987 (11th Cir. 2012)...more

Achieve Organizational Goals by Taking a Managed Services Approach to E-Discovery

With data volumes skyrocketing and the costs of litigation following a similar trajectory, organizations are exploring alternative models for managing e-discovery aside from the traditional model of outsourcing parts (or all)...more

Play Nice: Recent eDiscovery Decision Emphasizes Consistent Cooperation

In the weeks since Magistrate Judge Leen denied a late request to use predictive coding in a case before her, the e-discovery world is still abuzz over certain language included in her ruling. In the case in question,...more

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