Proportionality and Labeling ESI Productions

The new Amendments to the Federal Rules of Civil Procedure are bringing new voices to discuss eDiscovery. Magistrate Judge Nina Y. Wang issued a thoughtful opinion of the new Rules in Kissing Camels Surgery Ctr., LLC v. Centura Health Corp. (D.Colo. Jan. 22, 2016, Civil Action No. 12-cv-03012-WJM-NYW) 2016 U.S. Dist. LEXIS 7668.

Here is the short version of the dispute in a complex case: The Plaintiff brought a motion to strike the Defendants’ requests for production that were duplicative. The Plaintiff had already produced a terabyte of ESI and were not in the mood for the Defendants’ position that the Plaintiff identify what ESI they had already produced that was responsive to the Defendants’ requests. Kissing Camels, at *3-4, 7-9.


Judge Wang very effectively summarized the world of civil litigation by invoking Chief Justice John Roberts’ Year End Report on the Federal Judiciary, which stated the 2015 FRCP Amendments were intended to:

(1) Encourage greater cooperation among counsel;

(2) Focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case;

(3) Engage judges in early and active case management; and

(4) Address serious new problems associated with vast amounts of electronically stored information. 

Kissing Camels, at *5.

Judge Wang also made it a point to highlight the Chief Justice’s note that Rule 1 gives both lawyers and the Court an affirmative duty to work together to resolve disputes efficiently. Id.

The Court further outlined the proportionality principles of Rule 26(b)(1), which require Courts to “consider the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Kissing Camels, at *5-6.

The Court noted that many of the Defendants’ discovery requests were improper omnibus requests where no effort was made to tailor the discovery request to the issues in the case. Kissing Camels, at *7-8. The Plaintiff rightly objected to these requests, but made only improper boilerplate objections. Kissing Camels, at *8. The new Rule 34(b)(2)(B)-(C) requires parties to object with “specificity” and “an objection must state whether any responsive materials are being withheld on the basis of the objection.” Id. The Court described the Plaintiffs’ objection as follows:

As far as this court can tell, Plaintiffs fail to provide any specificity to their objections, including their objection that they have already produced responsive documents. Rather, it appears that Plaintiffs’ response simply points generally to the production of 1 terabyte of information—conservatively, millions of pages—without providing any type of guidance to Defendants as to where in the production such responsive documents are to be found.

Kissing Camels, at *8-9.

Judge Wang took a deep dive into the issue of whether Rule 34(b)(2)(E)(i) and (ii) both apply to electronically stored information. As many recall, subsection (i) requires a party to produce documents in the ordinary course of business or label a production. Kissing Camels, at *9. Many courts have treated (E)(i) and (E)(ii) as “supplementary rather than alternative.” Kissing Camels, at *12.

The ESI had been produced in a searchable format, so normally there would be no further analysis or production requirements. However, the Court noted the case was not ordinary. Judge Wang explained:

Based on the specific facts before me, including the volume of the document production to date, the asymmetry of information regarding the production between Plaintiffs (who are trial ready with respect to co-Defendant Centura Health Corporation and in a separate case with similar allegations against Cigna), the duration of time during which this case has been pending, and the fact that the Parties suggest that additional discovery must be conducted as to both the claims of the Second Amended Complaint and the counterclaims asserted by Defendants, this court concludes that Plaintiffs must provide additional information about where in the production Defendants may find certain information. This court will not, however, compel Plaintiffs to provide bates range numbers for responsive documents for every Request for Production; given the breadth of the discovery requests, such an Order would simply foment additional disputes. Rather, this court will permit Defendants to identify ten limited categories of documents already requested through the existing Requests for Production to which Plaintiffs objected based on being duplicative (e.g., documents that reflect Plaintiffs’ internal communications regarding network contracts with United, Anthem, Aetna) no later than February 4, 2016. Once identified, Plaintiffs must identify bates ranges of responsive documents to those ten categories, in writing, no later than February 16, 2016. This will ensure that Defendants prioritize their requests regarding location of responsive documents within the 1 terabyte of data, and will limit Plaintiffs’ obligation to sort through the production on Defendants’ behalf and correlate every Request for Production to specific bates ranges. 

Kissing Camels, at *14-15.

Bow Tie Thoughts

Electronically stored information is generally produced as it is ordinarily maintained or in a reasonably useable form under Rule 34(b)(2)(E)(ii). However, I still like to do my issue coding for responses that could comply with Rule 34(b)(2)(E)(i) for organization.

Binders in Everlaw grouping discovery responses.

I like setting up issue coding to correspond to each request for production. As searches are conducted for each response, ESI that is responsive to that request is tagged for that response. As is often the case, an email or Excel file can be responsive to more than one request, but that does not mean the data is produced more than once. After review for responsive discovery is completed, a report can be exported out to Excel if the requesting party has sought the production to comply with Rule 34(b)(2)(E)(i).


I know many attorneys who think is a waste of time. Others take a hard line to make the other side’s life as difficult as possible. I think it is vital for internal monitoring of knowing which ESI is responsive to what request. Moreover, if there is a reason to object to a specific request, knowing what ESI might be responsive makes objecting to that request with specificity a far easier task.

CSV Export from Everlaw with fields and objection.

CSV Export from Everlaw with fields and objection.



Let’s Play eDiscovery Baseball

We have Geek Judges. I love those Jurists. We also have Judges who love sports. I have a gut feeling it would be fun to go see a baseball game with Magistrate Judge Young B. Kim.


Bagwe v. Sedgwick Claims Mgmt. Servs., is a case where the prevailing party sought eDiscovery costs against an individual plaintiff. The Court took the mound for its analysis of the Defendants’ arguments with the following wind-up:

Defendants take several different swings to recover their costs related to ediscovery. Defendants first swing for the fence and seek $57,858.94 for the entirety of their ediscovery costs. They miss.

Bagwe v. Sedgwick Claims Mgmt. Servs., 2015 U.S. Dist. LEXIS 8809, at *15 (N.D. Ill. Jan. 27, 2015).

Get out the peanuts and crackerjacks, because Judge Kim was just getting warmed up.

As with many eDiscovery cost cases, the Court stated that the Defendants were “vague” about how the sum of $57,858.94 was determined. The Court cited that the costs pertained to obtaining and culling 422.05 Gigabytes of data down to 25 Gigabytes. Bagwe, at *15-16.

The Defendants argued they used “eDiscovery techniques” and were able to identify “even better” data than the prevailing Defendants in the In re Aspartame Antitrust Litigation, 817 F. Supp. 2d 608, 614-15 (E.D. Pa. 2011). Bagwe, at *16.

Defendants unsuccessfully argued that cases such as “Race Tires, Rawal, and Johnson were all wrongly decided” and that the facts of the current case justified cost recovery. Id. The Court answered this argument as follows:

Defendants’ assertion that Race Tires, Rawal, and Johnson were wrongly decided may be brushed aside because they do not offer any reasons why these cases were wrongly decided or why this court should not follow them. They merely urge the court to award all of their e-discovery costs because “[t]he equities demand [Bagwe] be held fully responsible.” But Rule 54 is not a discovery sanction tool.

Bagwe, at *16-17.

The Court continued the baseball metaphor with, “Defendants next swing for a double and argue that if the entire amount cannot be recovered, they are entitled to at least $7,953.90, which represents the cost of “gather[ing] emails with metadata intact . . . by creating forensic images and then extracting the .pst files into .msg files,” which they say amounts to converting the files into a “readable format.” Bagwe, at *17.

baseball-316934_1280The Court stated this argument was again a miss, because the Defendants did not explain how “the act of gathering e-mails that include metadata is different from other types of non-taxable ‘gathering.’” Id. As stated in prior decisions, “gathering, preserving, processing, searching, culling, and extracting of ESI” are not recoverable. Id.

The Court rejected the Plaintiff’s argument that the only recoverable costs were a $67 thumb drive. Bagwe, at *17-18.

The Defendants did get a hit with their final eDiscovery cost argument on “copying.” As the Court explained in its analysis of exemplification in Section 1920:

Costs for “exemplification and the costs of making copies” through photocopying and the conversion of ESI into a readable format are two sides of the same coin: namely, the pre-and-post digital era approach to “copying,” or creating readable documents that may be transmitted to the party requesting the information. The court notes that Section 1920(4) does not employ the phrase “making photocopies,” which is commonly understood to mean making paper copies, but employs the phrase “making copies of any materials,” which is a much broader phrase with more diverse meaning. Accordingly, Defendants are entitled to recover $7,266.40 in ediscovery costs. 

Bagwe, *18-19, referencing Massuda v Panda Express, Inc, 2014 U.S. Dist. LEXIS 4956, at *6.

$7,266.40 is a good base hit in the world of eDiscovery cost recovery.

Bow Tie Thoughts

First things first: I cannot wait for baseball season.

From a philosophic point of view, I agree with the Defendants that there should be greater recovery for eDiscovery costs. However, no one can cite “Josh thinks so,” in a motion and a Court will simply agree with me.

Proving eDiscovery costs were necessary for litigation and required for productions take invoices that explain what steps were taken and why. Even then, expert affidavits would still need to be prepared to explain to the Court why those eDiscovery technologies were used. Even if a party provided a Judge with the educational background on why those technologies were applied to the data, and how processing IS making copies, there is no guarantee such a report would knock the argument out of the ballpark.

Do I think there should be greater cost recover in eDiscovery costs? You bet. I also think Pablo Sandoval should have stayed with the Giants, but that did not happen. I often have the same melancholy feelings about parties not being able to recover hosting or processing costs as the Panda leaving San Francisco.

Meet & Confer at 10 Paces

role_play_thmThere are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.

The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).

The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.

Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.

According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.

The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.

Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.

Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.

Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.

Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.

Two crossed ancient pistols isolated on white

Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.

After the parties finished taking their respective shots at the other, the Court stated the following:

Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.

Procongps, Inc., at *11-12.

Bow Tie Thoughts 

The Dreyfus Protocol should never be included in a meet and confer.

eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.

The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.

Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.

2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

No Differences in Discoverability Between Social Media & Email

Letters versus telegrams. Faxes versus emails.

Attorneys must be familiar with the many ways people have communicated in the everyday course of their lives.

“Social media” is just another evolution in technology for possible sources of electronically stored information.

Robinson v. Jones Lang Lasalle Ams., is a case centering on a motion to compel the production of social media discovery from the Plaintiff in an employment dispute. Robinson v. Jones Lang Lasalle Ams., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012).

The Defendants specific sought social media including:

…photographs, videos, and blogs, as well as Facebook, Linkedln, and MySpace content that reveals or relates to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint…

Robinson, at *1-2.

The Court bundled its analysis of the social media discovery bundled with other electronically stored information including email and text messages. As Magistrate Judge Paul Papak wisely stated, recognizing that social media is simply another form of ESI:

I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.

Robinson, at *3.

In determining its order, the Court cited E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (“Simply Storage“), which “recognized that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff’s allegations of the severity of that distress.” Robinson, at *3-4.

The Plaintiff previously agreed to produce social media discovery “directly referencing her allegedly discriminatory supervisor or ‘work-related emotions.’” Robinson, at *5. Following the principles from Simply Storage, the Court ordered the following:

(1) any: (a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to: (a) any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

Robinson, at *5-6.

The Court explained that the category of communications pertaining to “any emotion, feeling, or mental state that plaintiff alleges to have been caused by defendant” was in regards to “information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.”  Robinson, at *6.

Additionally, the category of communications “that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct” was meant to produce discovery “establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident.” Robinson, at *6-7.

The Court walked the line between limiting discovery and declaring open season on the Plaintiff’s life with the following passage:

As Simply Storage recognized, it is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production. 270 F.R.D. at 436. Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what “has and has not been produced and can challenge the production if it believes the production fails short of the requirements of this order.” Id. Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiff s deposition or other discovery. 

Robinson, at *6-7.

Bow Tie Thoughts

Magistrate Judge Paul Papak did a huge service to eDiscovery with the statement “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” Robinson, at *3.

Social media content is just another form of electronically stored information. For example, there is no legal difference in drafting requests for Lotus Notes and CAD files. The same is true for social media, because it is literally just another flavor of ESI. Social media does not require special rules, just a recognition of the procedures that follow such requests.

Social media should not strike fear into the hearts of lawyers. Attorneys must learn to overcome their fear by understanding the types of social media their clients use; ways to preserve social media; what sorts of social media they should request; different forms of production; and whether any privileges apply to the specific electronically stored information.

Requesting Facebook Wall Posts obviously have differences with requests for email messages. However, the Federal Rules of Civil Procedure apply equally to both, and that is something that Magistrate Judge Paul Papak recognized in Robinson v. Jones Lang Lasalle Ams.

You Do Have to Look for Discovery in Your Possession

A Producing Party (the Defendant) argued against searching for responsive electronically stored information, claiming “that the mere fact an employee might have discoverable information or relevant knowledge does not necessarily mean she possesses relevant documents.” McNearney v. Wash. Dep’t of Corr., 2012 U.S. Dist. LEXIS 108386, 14-16 (W.D. Wash. Aug. 1, 2012).

Negative inductive reasoning aside, Federal Rule of Civil Procedure Rule 34 requires a party “to produce requested documents if they are within his ‘possession, custody, or control.'” McNearney, at *14, citing Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 165 n.6 (1980) (Stevens, J., concurring in part and dissenting in part).

The Producing Party did not challenge that it failed to search for responsive electronically stored information from “numerous employees identified as likely having discoverable [information],” but took the position that just because it was possible the custodians had relevant information, did not mean they actually had the relevant information.  McNearney, at *14.

The Court agreed with the logic, but that did not give the Producing Party a free pass on its duty to make a reasonable inquiry, especially considering the fact the Producing Party identified the employee as likely having relevant information. Id.

Further causing problems for the production, was a difference in email messages produced by the Defendant and two other Defense custodians, suggesting that there had not been a reasonable search for email by one of the Defense custodians. McNearney, at *14-15.

The Producing Party also conceded that it did not produce email attachments and that its search scope was narrower than the Plaintiff’s discovery requests. McNearney, at *15.

The Court held the following on the Defendant’s search:

Defendant’s production of some documents in response to RFP No. 5 does not satisfy its duty to make a reasonable search for and produce all responsive documents in its possession, custody, or control. Despite its original objection that RFP No. 5 was unduly burdensome because it was “a trap for Defendants,” DOC has not demonstrated that conducting a thorough search for responsive ESI would pose an undue burden or cost, as required in responding to a motion to compel. Fed. R. Civ. P. 26(b)(2)(B).

McNearney, at *15-16 (Emphasis added).

Bow Tie Thoughts

A party must demonstrate undue burden to limit discovery. This does not include an argument “that just because there might be something relevant, does not mean there is something relevant.”  While that is true in a logical discussion during a philosophy class, the Federal Rules of Civil Procedure are not an exercise in metaphysical nihilism to circumvent a party’s duty to conduct a reasonable search for responsive ESI to a discovery request.

The Federal Rules of Civil Procedure require ESI to be produced as it is ordinarily maintained or in a reasonably useable form. By the plain language of “ordinarily maintained,” a producing party cannot break the parent-child relationship between email messages and their attachments (or Tweets and Hyperlinks or text messages with photos).  Additionally, a production that breaks the parent-child relationship is not in a “reasonably useable form,” since searching for an attachment to its corresponding message is like re-unitizing a document that has had its staples removed and the pages shuffled with 1,000 other pages.

The technology to collect, search and produce electronically stored information are well established now after a decade of being available. These products are common services offered by eDiscovery service providers and many law firms have brought these technologies in house. While electronic discovery has many challenges, there are solutions available to these challenges that are affordable.

A Civ Pro Review of Jurisdiction

Judge Susan Illston could not simply Tweet her decision with 140 characters in Twitter, Inc. v. Skootle Corp.

Twitter sued the Defendants on numerous causes of action for the Defendants’ alleged spamming activity, including breach of contract, tortious interference with contract, fraud, and unfair or deceptive business practices.  Twitter, Inc. v. Skootle Corp., 2012 U.S. Dist. LEXIS 87029 (N.D. Cal. June 22, 2012).

The alleged facts of the suit involved the Defendants operating over 129,000 automated Twitter accounts that used “deceptive language” that directed Twitter users to websites that provided “online payment services of questionable legitimacy.” Twitter, at *6.

The Plaintiff alleged the Defendants’ actions included violating the Terms of Service Agreement by:

(a) Spamming users;

(b) Creating serial accounts for disruptive or abusive purposes;

(c) Tweeting misleading links; and

(d) Posting the same message from multiple accounts.

Twitter, at *6.

The Plaintiff claimed they spent at least $75,000 in anti-spam measures and sought multiple remedies against the Defendants.  Id.

One Defendant, acting pro se, brought a motion to dismiss based on subject matter jurisdiction and personal jurisdiction, plus other traditional civil procedure challenges. Twitter, at *1-2.

The Court’s holding could have been a very short Tweet: Denied.

Civil Procedure Review

Judge Illston first addressed the challenge of lack of subject matter jurisdiction.

The Defendant challenged diversity jurisdiction on the grounds the Plaintiff stated their anti-spam costs were “at least $75,000” and not “exceeds the sum or value of $75,000.” Twitter, at *7.

The Defendant also claimed that contract law is a state law issue that should not be litigation in Federal Court. Twitter, at *7-8.

Finally, the Defendant claimed the use of the term “spam” did not meet the definition of the CAN-SPAM Act of 2003. Twitter, at *8.

The Court held that the Defendant failed to meet his burden that subject matter jurisdiction was improper.

First, Twitter’s anti-spam expenses were only one expense they incurred from the Defendant’s actions. The complaint also sought compensatory, statutory, punitive, and exemplary damages, in addition to restitution and disgorgement of profits to be established in trial. Twitter, at *8-11.

As the Court held in 796 characters:

Here, [Defendant] has not met his burden. He has not presented any facts that would support his position that the amount in controversy cannot exceed the jurisdictional minimum. It is only disputed, not implausible, that the amount sought by plaintiff, including the value of the injunctive relief, is over $75,000. Further, it is well-established that a federal district court may hear a breach of contract claim, among other matters of state law, in diversity jurisdiction. Finally, the definition of “spam” in the CAN-SPAM Act is irrelevant to the present case because the complaint does not concern that Act but a breach of the TOS contract, which defines “spam” for the purposes of the agreement. Defendant Harris’s motion to dismiss for lack of subject matter jurisdiction is, therefore, DENIED.

Twitter, at *10-11.

Personal Jurisdiction

The Court rejected the Defendant’s personal jurisdiction challenge, because there was a valid form selection clause in the Twitter Terms of Service Agreement.  Twitter, at *12-13.

Forum selection clauses are prima facie valid. Twitter, at *12. A party must show the clause was “unreasonable under the circumstances” in order to be set aside. Id. Further, “hardship” in having to travel to California does not make a clause unreasonable when a defendant was both aware of a clause and able to negotiate it.  Id.

The Defendant was from Florida and failed to show any evidence regarding his ability to litigate in California. Twitter, at *12-13. The Defendant’s arguments of personal jurisdiction truly ran aground when the Court cited the law school favorite Carnival Cruise Lines, Inc. v. Shute:

The Supreme Court has held that cruise ticket purchasers were bound by a forum selection clause in a standard contract when “conclusory reference to the record provides no basis for this Court to validate the finding of inconvenience.”

Twitter, at *13, citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594 (1991).

The Court held that enforcement of the forum selection clause was not unreasonable, based on the allegations in the complaint that the Defendant:

1) Offered “online payment services” and attempts to profit from his alleged Twitter “spam;”

2) That Twitter has spent $75,000 to counteract the Defendant’s 129,000 automated Twitter Accounts; and

3) The Defendant did not submit any evidence regarding his ability or inability to litigate in California.

Twitter, at *13.

Bow Tie Thoughts

This case literally sounds like a first year Civil Procedure exam. The Court reviewed each element of subject matter jurisdiction, personal jurisdiction, venue, service of process and pleading. The Court even cited a first year case: Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

Online businesses and traditional rules of Civil Procedure have been an entertaining issue since the mid-1990s (Well, for people who like Civ Pro and e-Commerce). Moreover, the impact of forum selection clauses are always interesting to review in online disputes, because they can be unreasonable in certain situations and valid in others (See, Dix & Smith v. ICT Group, Inc., and AOL, 161 P.3d 1016, 1020 (Wash., 2007), where a forum selection clause was found unreasonable because it denied the plaintiffs relief under the Washington Consumer Protection Act).

This is a solid opinion that I predict will be in future Civil Procedure classes.

Streaming Early Discovery in Online Music Infringement

The Plaintiffs filed a suit alleging copyright infringement against the online proprietors of Korean pop music website where the Defendants “post, organize, search for, identify, collect and index links to infringing material that is available on third-party websites,” which the Plaintiff claimed was a “a one-stop shop for infringing material.” DFSB Kollective Co. v. Jenpoo, 2011 U.S. Dist. LEXIS 62163, *1-2 (N.D. Cal. June 10, 2011).

The Plaintiffs sought early discovery on eight third-party service providers and “other necessary entities that may be uncovered during discovery” to identify the Doe Defendants, because the Defendants allegedly used false names on their various websites and social networking profiles. DFSB Kollective Co., at *2, 4. The service providers included:







HostGator and


DFSB Kollective Co., at *4.

Requirements for Early Discovery

Early Discovery may be allowed by a Court when there is “good cause” and “for the convenience of parties and witnesses and in the interests of justice.” DFSB Kollective Co., at *4, citing Fed. R. Civ. P. 26(d).

A Moving Party must show the following to conduct early discovery:

(1) Identify the defendant with enough specificity to allow the Court to determine whether the defendant is a real person or entity who could be sued in federal court;

(2) Recount the steps taken to locate the defendant;

(3) Show that its action could survive a motion to dismiss; and

(4) File a request for discovery with the Court identifying the persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information.

DFSB Kollective Co., at *4, citing Columbia Ins. Co. v., 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

Downloading Good Cause

The Court found good cause for early discovery, because ISP subscriber logs are retained for a short time before the data is lost. DFSB Kollective Co., at *5. In short, time is of the essence to identify Doe Defendants with ISP information.

The Court outlined how the Plaintiffs had satisfied the four-factor test for conducting early discovery:

Defendants specifically identified e-mail addresses, user IDs, and account numbers.

The Defendants had hired investigators and presented the findings to the Court.

The Defendants established that the Complaint would likely to survive a motion to dismiss.

The Defendants demonstrated there was a reasonable likelihood that third-party discovery would produce identifying information, with a couple of big caveats.

DFSB Kollective Co., at *5-6.

The Court’s Terms & Conditions on Limited Discovery

The Court’s order was limited to six of the third-parties, because the Plaintiffs did not show a connection between MySpace and GoDaddy to the Defendant. DFSB Kollective Co., at *6-7. The Court noted that the MySpace account appeared dormant and contained no references to the Defendants’ website. Id.

Additionally, the Court limited the search into the different email addresses down to two, because those addresses appeared connected to the alleged infringing activity. DFSB Kollective Co., at *7.

Furthermore, the Court did not allow the Plaintiff to subpoena the Defendants’ financial institutions. Id.

The subpoenas were limited to the production of the names, addresses, phone numbers, e-mail addresses, and physical addresses associated with those accounts. Id.

No Tonkin Gulf Resolution for Production

Echoing the logic that enacted the War Powers Act, the Court refused to give an open-ended order where the Plaintiff could seek discovery from “other necessary entities that may be uncovered during discovery.” DFSB Kollective Co., at *7-8.

Pistols at Downloading: Dueling Procedures for Third-Party Service Providers

The third-party service providers subject to the discovery order were required to serve a copy of the subpoena on their affected subscribers. If the subscribers did not file a motion to quash, the third-parties would then produce the required information within 10 days. DFSB Kollective Co., at *8-9.

Bow Tie Thoughts

Early discovery from third-party service providers walks a delicate line between furthering the interests of justice and violating privacy laws. In this case, early discovery was absolutely required to identify the Doe Defendants. Early discovery from third-party service providers is often the only way to identify committing an online tort.

However, the idea of a Court giving a very open-ended Order to seek discovery from “other necessary entities that may be uncovered during discovery” should give everyone pause. Discovery requests are supposed to be narrowly tailored and reasonably particular against an entity; a blank check to seek discovery from un-named third-party service providers would be a very dangerous precedent. If a third-party is identified and has a causal connection to a case that may produce information to identify a doe defendant, a party should bring it before the Court for expedited discovery.

The other risk with early discovery is ordering the production of otherwise privileged information. For example, California has a state constitutional right to privacy which might apply in some cases. The Stored Communication Act protects the contents of email messages from production by a third-party. Financial information is also often protected by both Federal and State laws. While producing names, addresses, phone numbers, e-mail addresses, and physical addresses is within the interests of justice, Courts must guard against these procedures from being abused.

Santa Clara Bar Association Expert Deposition Seminar

Go “On the Record” with the Santa Clara County Bar Association Civil Practice Committee’s new expert deposition seminar on June 22 at 6:00pm. To register, click here.

“On the Record” is a seminar with Judge Gregory Ward (retired), author of California Objections (James Publishing). After the brief introductory material by Judge Ward, 10 expert witnesses will be available with sample expert reports for mock depositions by the attendees. Experienced attorney coaches will assist the attendees in their mock examinations.

Attorney participants will have the opportunity to depose an expert witness from any one of the following areas:

> Electrical Engineering
> Fires & Explosions
> Computer Forensics
> Industrial Hygiene
> e-Discovery Search Term Efficiency
> Mechanical Engineering
> Advanced Materials

Join us for the latest on deposing experts in California. Learn a judge’s perspective on expert depositions and gain hands-on practice with experienced expert witnesses.

Part 1: 

Retired Superior Court Judge Gregory Ward will give a short overview of expert witness requirements, focusing on preparing to take an expert’s deposition.

Part 2: 

Attendees will divide into small groups for a practical exercise with attendees conducting 10-15 minute questioning of experts.

The experts will be from multiple subject areas to represent several practice areas. Each attendee will be given a one-page expert’s “report” to use in the mock deposition.

Facilitating the interactive groups of Part 2 are the following: Kristine Meredith, Nora Rousso, plus other attorneys to be announced.


SCCBA Member: $65.00
Non-Member: $149.00
SCCBA New Admittee (0-3 years in practice): 55.00

Driving the Snakes from e-Discovery Seminar

Driving the Snakes from e-Discovery, the first seminar by the Santa Clara County Bar Association e-Discovery Task, will be on March 17, 2011 in San Jose, California.  This two-hour seminar is the first of a four-part series on e-Discovery in Silicon Valley. To register for the panel, please click here

“Driving the Snakes from e-Discovery” is an introduction to electronic discovery. It will address practical solutions for understanding and competently handling e-Discovery issues, whether you are working with a small client or a large enterprise and will include an overview of e-Discovery terminology; understanding computers and sources of electronic data; collection methodologies for large and small clients; litigation hold notices and strategies; and best practices for complying with the California Electronic Discovery Act and the Federal Rules of Civil Procedure.

I am very proud to be on this panel with an all-star panel, including:

Judge Socrates Manoukian, Santa Clara County Superior Court

William Kellermann, Esq., Director of e-Discovery at Wilson Sonsini Goodrich & Rosati

Dianne Sweeny, Esq., Pillsbury Winthrop Shaw Pittman LLP

Kate Wilson, Esq., Berliner Cohen

Jon Rowe, PinPoint Labs

If you are in Silicon Valley and the San Francisco Bay Area, we hope you can join us on March 17 for Driving the Snakes from e-Discovery.  Our panel is also sponsoring O’Doul’s Non-Alcoholic Beer in honor of St. Patrick’s Day.