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SK Hynix, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2013 WL 1915865 (N.D. Cal. May 8, 2013)
In this ongoing patent infringement action, a major question has been whether Rambus’s destruction of documents constituted spoliation and, if so, what sanctions should be imposed. Different courts considering the same facts (but involving different plaintiffs) came to different conclusions. Upon its initial consideration of the question, the district court in the Northern District of California determined that “Rambus had not spoliated documents” and that there was “no factual basis for an unclean hands defense” as asserted by SK hynix. (See summary here.) A jury subsequently returned verdicts in favor of Rambus and the court therefore “entered final judgment of infringement with respect to ten Rambus patent claims” and awarded judgment of “$349,035,842 after a remittitur plus prejudgment interest, and required SK hynix to pay specified royalties to Rambus on an ongoing basis.” A district court in the District of Delaware (in a case involving Plaintiff Micron Technology, Inc.) disagreed, however, and found that sanctions were warranted for Rambus’s spoliation of documents. (See summary here.) The court therefore declared the patents in suit unenforceable against the plaintiff in that case.
Upon appeal (of both cases) to the Federal Circuit, the court addressed the competing holdings of the two cases and affirmed the findings of the Delaware court that Rambus had engaged in spoliation. (See summary here.) The district court in California was therefore instructed to reconsider the question of spoliation in accordance with the relevant analysis in the Delaware case. Upon remand, the district court in California concluded that Rambus had committed spoliation and determined that the appropriate sanction was to “strike from the record all evidence supporting a royalty in excess of a ‘reasonable and non-discriminatory royalty.’” (See summary here.) Thus, the parties were ordered to submit briefing on the question of what a reasonable, non-discriminatory royalty rate would be.
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Source: ediscoverylaw.com
As compared to a decade ago, organizations have a number of deployment options for their technology investments. No deployment trend has garnered more attention in recent years than the advent and soaring popularity of cloud computing. The cloud offers organizations a degree of scalability, cost efficiency and "pay-as-you-go-pricing" desired in today's tenuous economic climate.
Traditionally, e-discovery software has been deployed in an organization's infrastructure behind the firewall. As with other enterprise-class software, organizations are now demanding additional deployment models to meet their specific requirements. In fact, some have adopted a "cloud-first" strategy, meaning that much of the organization's electronically stored information (ESI) is being stored in the cloud.
However, because e-discovery—and the technologies that support it— is subject to sensitive legal risks and technical complexities, selecting the optimal deployment model is not always as straightforward as might first appear.
Following are five key criteria knowledge workers, in conjunction with IT and legal, should consider in deciding which e-discovery software deployment method is right for their organization:
1. E-Discovery Process(es) that Need to be Supported
The legal requirements surrounding e-discovery are generally well understood. From a technical standpoint, however, e-discovery is a complex, multi-faceted endeavor involving a bevy of variables. For this reason, deciding whether to deploy e-discovery software in the cloud depends largely on the organization's overall cloud strategy and the e-discovery process(es) that need to be supported. The Electronic Discovery Reference Model (EDRM) defines nine distinct processes, starting with information management, identification and preservation and progressing through collection, processing, analysis, review, production and presentation (in court).
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Source: KMWorld
By: Ted Gary
Last week I attended a “Predictive Coding Boot Camp” produced by the E-Discovery Journal and presented by Karl Schieneman of Review Less and Barry Murphy. I’ve participated in many workshops, seminars, discussions, and webinars on the topic, but this half-day seminar went the deepest of any of them into the legal, technology, and case strategy implications of using technology to minimize the cost of human document review in e-discovery. It was a solid event.
(But, I wasn’t there to learn about e-discovery. I’ll tell you why I was there in a moment.)
You see how I snuck in an implied definition above? Because, whatever you call it – predictive coding, technology-assisted review, computer-assisted review, or magic – isn’t that the problem that we are trying to solve? To defensibly reduce the number of documents that a human needs to review during e-discovery? There are a number of way to get there using technology, but the goal is the same.
What does e-discovery have to do with IG?
To review, in civil litigation, both sides have an obligation to produce information to the other side that is potentially relevant to the lawsuit. In the old days, this was a mostly a printing, photocopying, and shipping problem. Today it is primarily a volume, complexity, and cost problem. Although discovery of physical evidence and paper records is obviously still part of the process, electronic evidence naturally dominates.
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Source: barclaytblair.com
By: Barclay T. Blair
As a former securities litigator, Gabriela Baron recalls the days of document production when she tagged paper documents with different color tape flags, labeled the boxes lining the hallways with sharpie marker, and met trucks in the building’s loading bay, to make sure all those documents and all those boxes got delivered to opposing counsel.
That was in the late 1990s and early 2000s. Then, in 2004, she became a general counsel of the electronic discovery provider Amici LLC, which was acquired by Xerox Litigation Services in 2006. These days, she finds herself in meetings with associates who can’t even imagine that’s how discovery got done on massive cases. “They’re like, ‘That’s nuts, you were in the loading bay with the boxes?’,” says Baron, who is now vice president for business development at XLS.
Indeed, a lot’s changed since what Baron calls the “dark ages” of e-discovery—and not just the shift from paper to electronic platforms. “Back then, corporations were the ones most in the dark” about how e-discovery worked, she says. Now, it’s corporate legal departments—not law firms—that evaluate and contract providers. Baron estimates she spends 90 percent of her time interfacing with corporations, and only about 10 percent with law firms.
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Source: Corporate Counsel
By: Catherine Dunn
Abundant misinformation from vendors protecting a multibillion dollar market
This is part two of a two-part series. The first article in this series discussed changes in the e-discovery market, and how these changes drive misinformation and misleading statements from law firms and e-discovery vendors.
“Only an outside provider can do a ‘complete’ identification and collection.” E-discovery vendors promise that they will look everywhere for all the relevant documents. Left to their own devices, many vendors will do an unnecessarily broad collection, creating a large corpus of documents to process and review. At a recent judges conference, some large companies admitted that in some cases they overcollected by a factor of fifty. Discovery vendors run amok are certain to drive up your costs. While your discovery process needs to be defensible, this should be balanced with “reasonable, good faith efforts.” In-house counsel should not hand over the keys to anyone. Rather, they should monitor the process to ensure proper balance and avoid runaway costs. When one large international law firm was confronted with emails purporting to show how its partners were recklessly running up their client’s legal bill, the firm claimed this was only “an unfortunate attempt at humor.” I fail to see the humor. Excessive and overly broad discovery often escapes scrutiny, yet as a tremendous revenue source for law firms it risks abuse.
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Source: InsideCounsel
By: Mark Diamond
Apple obtained a narrow discovery victory yesterday in its long running legal battle against fellow technology titan Samsung. In Apple Inc. v. Samsung Electronics Co. Ltd, the court ordered non-party Google to turn over the search terms and custodians that it used to produce documents in response to an Apple subpoena.
According to the court’s order, Apple argued for the production of Google’s search terms and custodians in order “to know how Google created the universe from which it produced documents.” The court noted that Apple sought such information “to evaluate the adequacy of Google’s search, and if it finds that search wanting, it then will pursue other courses of action to obtain responsive discovery.”
Google countered that argument by defending the extent of its production and the burdens that Apple’s request would place on Google as a non-party to Apple’s dispute with Samsung. Google complained that Apple’s demands were essentially a gateway to additional discovery from Google, which would arguably be excessive given Google’s non-party status.
Sensitive to the concerns of both parties, the court struck a middle ground in its order. On the one hand, the court ordered Google to produce the search terms and custodians since that “will aid in uncovering the sufficiency of Google’s production and serves greater purposes of transparency in discovery.” But on the other hand, the court preserved Google’s right to object to any further discovery efforts by Apple: “The court notes that its order does not speak to the sufficiency of Google’s production nor to any arguments Google may make regarding undue burden in producing any further discovery.”
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Source: e-discovery 2.0
By: Philip Favro
Economic and budget realities have turned the spotlight on fraud, waste and abuse across federal, state and local government organizations, and agencies are employing new technologies that can detect collusive relationships and combat some of the more sophisticated fraud schemes.
Technology that incorporates social network analysis, which helps establish connections and relationships between people, and predictive coding, which provides machine-learning techniques that help systems learn fraud patterns, are among the weapons agencies are enlisting to combat fraudulent payments, according to industry experts.
T
he Los Angeles County Department of Public Social Services is using social network and predictive analytics from SAS Analytics to identify potential fraud and prevent improper assistance payments. The Data Mining Solution for Child Care Welfare Fraud Detection, based on the SAS Fraud Framework for Government and SAS data mining techniques, debuted in May 2011.
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Source: GCN
By: Rutrell Yasin
A recent Telework Week report indicated that bring-your-own-device, or BYOD, programs have yet to fully take hold in the federal government, even though many employees are pressing to use their own smartphones and tablets for work. That may soon change: A new analysis predicts more than one-third of organizations will stop providing devices to workers by 2016.
Based on answers to its recent global survey of chief information officers, Gartner predicts that by 2016 38% of organizations will have stopped providing mobile devices to employees, instead allowing employees to choose and use their own devices in the workplace. By 2017, half of employees will be using their own devices for work, the analysis found.
But while BYOD is becoming more prevalent, the business case for it needs to be evaluated, Gartner noted. Most leaders, for example, do not understand the benefits of BYOD, with just 22% of CIOs saying they’ve made a strong business case for the option.
“Mobile initiatives are often exploratory and may not have a clearly defined and quantifiable goal, making IT planners uncomfortable,” said David Willis, vice president and distinguished analyst at Gartner, in a statement. “If you are offering BYOD, take advantage of the opportunity to show the rest of the organization the benefits it will bring to them and to the business.”
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Source: Mashable
By: Austin Carr
YOUR PERSONAL DATA IS BEING OVER-SHARED WITH COMPANIES AND ADVERTISERS. SO HOW MUCH CONTROL SHOULD YOU HAVE OVER YOUR PRIVATE INFO?
With so much data being collected about us online, can our offline identities ever be divorced from our web personas? Today, Google executive chairman Eric Schmidt offered a simple solution for kids being brought up in the age of Facebook, Twitter, and Snapchat.
"I propose that at the age of 18, you should, just as a policy, change your name," Schmidt said, with a smile. "Then you can say, 'That really wasn't me; I really didn't do that!'"
Schmidt was being facetious, of course. But Google and its competitors are amassing endless troves of personal user data--tracking everything from browsing history to email to mobile usage--at times controversially. Google has already faced a number of high-profile lawsuits over privacy issues related to targeted advertising and mapping, and is likely to encounter more in the future as products like Google Glass reshape our interactions with technology. Today, at NYU's Stern business school, economist Nouriel Roubini grilled Schmidt about Google's evolving role in personal privacy.
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Source: Fast Company
By: Austin Carr
Hoarding information, or storing enterprise data in the wrong places, can open your company to legal liability.
But culture change won't be easy.
Data management is a never-ending struggle for enterprises, particularly when employees store work data in personal accounts on cloud storage services. This so-called data leakage, combined with the problem of data hoarding inside the enterprise firewall, can spell trouble for organizations, especially in legal matters.
According to Kevin Cochrane, chief marketing officer of OpenText, a Waterloo, Ontario-based provider of enterprise information management (EIM) software, every source of enterprise content should be completely under management's control, and hoarding must be disallowed.
Increasingly, however, that's not the case. "People are losing control of their information, and employees are starting to save all of their enterprise information elsewhere," said Cochrane in a phone interview with InformationWeek.
So what should enterprises do? "They need to wake up and take a look at all the sources of information that people are hoarding, and where they're hoarding them," Cochrane advised.
The problem of saving too much information -- a growing issue in the era of big data -- can come back and bite an organization during the discovery phase of a lawsuit, for instance.
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Source: InformationWeek
By: Jeff Bertolucci
Consistency is the key to success in many aspects of life: parenting, driving, cash disbursement at an ATM, team management, and eDiscovery. When it comes to eDiscovery, consistency is a key ingredient to meeting deadlines, keeping costs in check, and ensuring defensibility. But in a world where, as Greek philosopher Heraclitus noted, the only constant is change, ensuring consistency throughout the eDiscovery process can be a challenge – and it requires a combination of process and technology.
Establishing eDiscovery as a Consistent Process
The idea of establishing eDiscovery processes and plans within companies is not new. A small number of companies today have accepted the fact that eDiscovery is a necessary part of doing business and are treating it as a business process. They have established accountability and put procedures and resources in place and, as a result, they are successfully controlling costs, better managing risks, and reducing overall business disruption.
Most companies, however, still react to discovery matters as an event-driven process and rely on a patchwork of standalone activities for records management, management of electronically stored information (ESI), and eDiscovery to solve for each case. These approaches are often inconsistent, costly, and disconnected, resulting in incomplete or lost information and leaving the organizations vulnerable.
Even when policies, procedures, measurements, and audits are established, they are of little value if they are not applied consistently across the organization or results are not consistently monitored and tracked. Without eDiscovery consistency, organizations create significant risks:
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Source: Focused Discovery
By: Jeff Fehrman
