Proportionality

News & Analysis as of

TCPA Team Scores Win For Dorsey Client: Court Prohibits Plaintiff From Seeking Deposition Testimony on Unrelated Prior Complaints

On May 18, 2016, Dorsey’s Telephone Consumer Protection Act (“TCPA”) team scored a major victory on behalf of one of its financial services clients when the District Court for the Middle District of Florida granted its...more

E-Discovery Update: Proportionality for Lawyers

Proportionality is not limited to Einstein’s equations and banter on The Big Bang Theory. The December 2015 amendments to the Federal Rules of Civil Procedure moved proportionality from Rule 26(b)(2)(C)(iii), which required a...more

May The Force be with You: Binding the E-Discovery Process Together

The idea that all things are connected is a comforting one. Some people long to be unified with other people, both loved ones and strangers. Others seek unity with the natural world--flora and fauna, water and stone. Even in...more

Discovery - Oppenheimer’s Half Life Has Long Been Exceeded

As we’ve discussed previously, and as the legal profession is by now well aware, the discovery provisions of the Federal Rules of Civil Procedure were significantly amended effective December 1, 2015. One of the foundational...more

Disclosure in a digital age – How reforms and technology can reduce the costs of disclosure in arbitration and court

Managing the cost of litigation to business remains one of the toughest issues confronting any lawyer today. As the challenge of keeping costs proportionate seemingly gets more difficult by the day, we consider the impact of...more

Not So Fast! Qualcomm Cannot Use “Curious Quirk” of U.S. Discovery Law In Korean Antitrust Proceeding

A recent federal court order highlights the scope, and the limitations, of a U.S. court’s authority to order domestic discovery for use in a foreign proceeding under 28 U.S.C. § 1782. The court in In re Ex Parte Application...more

European Securities and Markets Authority Joins European Banking Authority in Call for Legislative Changes on Application of...

The European Securities and Markets Authority published its final report on Guidelines on the sound remuneration policies under the Units in Collective Undertakings Directive and the Alternative Investment Fund Managers...more

Defendants’ Proposal to Redact Irrelevant Information Upheld under Newly Amended Rule 26 Florida

In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. Mar. 1, 2016) - In this products liability case, a Special Master approved the defendants’ proposal to withhold or redact irrelevant parent documents from...more

Courts Have Nothing But Good Things To Say About Predictive Coding

Predictive coding (also called “technology assisted review” (“TAR”)) involves the use of computerized artificial intelligence to extrapolate from attorney coding of small (and repeated) sample document sets ultimately to...more

Court Denies Motion to Compel In Part Based on Newly Amended Proportionality (Ohio)

Wilmington Trust Co. v. AEP Generating Co., 2016 WL 860693 (S.D. Ohio Mar. 7, 2016) - In this case, the plaintiffs filed a motion to compel ordering the defendants to conduct additional searches for ESI covering two time...more

Court Denies Motion to Compel Additional Email Searches on Proportionality Grounds (Washington)

Moore v. Lowe’s Home Centers, LLC, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016) - In this discrimination case, the plaintiff filed a motion to compel email searches, arguing that the defendant’s initial searches were...more

Mass Torts Made Perfectly Convivial - the Sequel

A little over four years ago we reported on our visit to the Mass Torts Made Perfect conference in Philadelphia. MTMP is a plaintiff lawyer organization. Every year it conducts a conference in Las Vegas, where plaintiff...more

Amended FRCP 26(b) in Action: Trio of Recent Northern District of California Cases Address Who Has the Burden of Establishing the...

In January and February 2016, the Northern District of California issued a trio of decisions following the December 2015 amendments to Rule 26(b) of the Federal Rules of Civil Procedure, two of which echo the Advisory...more

Objections to Document Demands Under Amended Rule 34

The approach of objecting to document demands with boilerplate language containing half a dozen or more objections that have no actual nexus to the demands at issue has been used by litigators for decades. However, this...more

Newhall Case Applies Proposition 26 to Wholesale Water Rates

Newhall County Water District v. Castaic Lake Water Agency (2016) 243 Cal.App.4th 1430 (“Newhall”) - Case Disposition - Plaintiff Newhall County Water District (“Newhall”), a retail water purveyor, challenged a...more

Court Emphasizes Proportionality under Amended Rule 26(b)(1) (New York)

Henry v. Morgan’s Hotel Group, 2016 WL 303114 (S.D.N.Y. Jan. 25, 2016) - In this discrimination case, the court held that third-party subpoenas violated the Federal Rules of Civil Procedure, particularly Fed. R. Civ. P....more

The Right Tools for the Job: E-Discovery Technology Can Never Replace Lawyers, Only Help Them

Growing up in rural Illinois, the John Deere logo was as ubiquitous as Nike in Portland or Starbucks in Seattle. From old farmers’ mesh-backed caps to the giant tractor that my friend, Scott, parked in the student parking...more

Proportionality makes a comeback

After seemingly endless years of rulemaking, the first decisions applying the amended Federal Rules of Civil Procedure have begun to trickle out. Not surprisingly, there have been no game changers to date, but early signs...more

Court Focuses on Balance of Proportionality and Parties’ Burdens in Light of Amended Rule 26(b)(1) (California)

ChriMar Systems v. Cisco Systems, 2016 WL 126556 (N.D. Cal. Jan. 12, 2016) - In this patent infringement case, the court focused heavily on the new Fed. R. Civ. P. 26(b)(1) amendments in determining the benefits of...more

Court Emphasizes the Importance of Proportionality and The Addition of New Proportionality Factors in Rule 26(b)(1) (Georgia)

Herrera v. Plantation Sweets, 2016 WL 183058 (S.D. Ga. Jan. 14, 2016) - In this case, the court held that the defendants had failed to comply with discovery requests and granted the plaintiffs’ motions to compel an...more

Applying New Proportionality Requirements, Court Grants Motion to Compel and Orders Production of Unredacted Tax Returns and...

In this patent infringement action, Slide Fire Solutions, LP ("Slide Fire") moved to compel discovery responses from Bump Fire Systems ("Bump Fire"). Bump Fire also requested a protective order to prevent the disclosure of...more

Genius like Churchill: Improving the E-Discovery Process in 2016 with Technology

Winston Churchill said, “True genius resides in the capacity for evaluation of uncertain and conflicting information.” So we here at Exterro took his advice concerning our recently released 2nd Annual Judges Survey where,...more

Defendants Find Relief from Burdensome Discovery Requests

Litigation often involves lengthy battles over the proper scope of discovery. Defendants with substantial resources frequently find themselves on the receiving end of unreasonable discovery requests in an attempt to overwhelm...more

Disproportionate Discovery, Even in an MDL

Here’s a significant post-rules-amendments discovery decision out of the Xarelto MDL. In In re Xarelto (Rivaroxaban) Products Liability Litigation, 2016 WL 311762 (E.D. La. Jan. 26, 2016), the court (Fallon, J.) cited both...more

Court Denies Motion to Compel Under Newly Amended FRCP 26(b)(1) (California)

Gilead Sciences v. Merck, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016) - In this patent infringement case, the defendant sought additional discovery on the contents of certain “tubes of compounds” that the plaintiff’s...more

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