N.D. Cal. Ruling on Motion to Transfer: Ease of Access to Evidence Still a Factor in the Age of ESI

This past Friday, Judge Jon S. Tigar issued a decision, Imran v. Vital Pharm., Inc., No. 18-cv-05758-JST; No. 18-cv-06300-JST, 2019 U.S. Dist. LEXIS 59389 (N.D. Cal. Apr. 5, 2019), denying motions to transfer and granting a motion to consolidate. The Imran and Madison plaintiffs filed separate suits against Vital for its alleged misrepresentation of the effects of BANG energy drinks. Vital filed motions to transfer the cases to the Southern District of Florida, and the Plaintiffs filed a motion to consolidate.

The Court weighed nine different factors in reaching its decision to deny the transfer motions.

PRO

1. Vital maintains its corporate headquarters in Florida, and proper venue and personal jurisdiction exist in the Southern District of Florida.

2. The Florida district might be more convenient to the witnesses in the case.

3. Court congestion. The Florida court resolves cases more quickly.

CON

3. Deference to the Plaintiff's choice of forum

4. The fact that the claims arose under California law.

5. Local interest in the controversy.

6. Familiarity with governing law

7. Feasibility of consolidation. The first to file default consideration worked in favor of the Imran and Madison plaintiffs who filed before another pair pf plaintiffs in Florida, and multi-district coordination was an option.

NEUTRAL

8. Convenience of the parties.

The ninth factor weighed by the Court, "Ease of Access to Evidence", is the one we'll focus on here since it involves technical considerations. Judge Tigar noted judicial precedent finding the transportation of documents not to be burdensome because of technological advances, but held that, "[w]hile this diminishes the weight of this factor in the transfer determination, ease of access to the evidence remains a factor to consider." Id. at *13. This case concerns some documents not available in electronic format, and requires inspection of a laboratory and warehouse in Florida. The Plaintiffs only contended that the ease of access to evidence could be disregarded because the electronic transfer of data was possible. Judge Tigar concluded that this factor, "weighs slightly in favor of transfer." Id. Although it did not make the difference in this case, the ease of access to evidence continues to be given weight even in what is arguably the vanguard of digital technology in the United States, Northern California.

The motion to consolidate was granted under the Court's broad discretion to consolidate cases with common questions of law and fact.

Motion to Dimiss Granted to Dropbox in Patent Case

This past Thursday, Judge Lucy H. Koh issued a decision, Orcinus Holdings, LLC v. Synchronoss Techs., Inc., No. 18-CV-06199-LHK, 2019 U.S. Dist. LEXIS 58619 (N.D. Cal. Apr. 4, 2019), granting the Defendant's motion to dismiss in a patent infringement case. Orcinus Holdings is a subsidiary of Dropbox, Inc.. The Plaintiff alleged that its patent for backing up personal data was infringed.

The court denied the claim in part because, "The concept of data retrieval from a server is generalized computer activity." Id. at * 35. A claim for a patent which describes functions generic to a computer will be denied. Tagging data that corresponds to a data field, is 'known in the art'. Likewise transmitting data from a customer premises equipment (CPE) to a server with a user ID is also known in the art, and the Plaintiff's method was not a specific improvement. The Court also focused on the fact that an automated processes covered by the Plaintiff's patent could be performed manually. "So long as the underlying process claimed in the patent can be performed manually by a human, that is enough to find that a patent is directed toward an abstract idea." Id. at *43. Five years ago in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), the Supreme Court of the United States, held that implementing abstract ideas on a computer are not sufficient to create a patentable subject matter. Storing, transmitting, and retrieving data can be performed manually, and so are abstract.

The Court also did not find that the Plaintiff's claim was an inventive concept, which the Alice test holds can make an abstract idea patentable with inventive computing. However the Court held that, "(1) storing data at the mobile customer premises equipment ("CPE"); (2) formatting the data stored at the CPE; (3) transmitting the data with a user ID from the CPE across a mobile network to a server; (4) retrieving data stored in the server in response to either an expiration of time or a request from the CPE; and (5) transmitting the data to the CPE in multiple sequentially-numbered information signals.", were not inventive concepts. Orcinus, 2019 U.S. Dist. LEXIS 58619, at * 46.

Metadata Proves Timing of Search

Two days. Judge Elizabeth K. Dillon issued a decision, Blanchard v. Prater, No. 7:17-cv-00079, 2019 U.S. Dist. LEXIS 55789 (W.D. Va. Mar. 31, 2019), granting the defendants' motion for summary judgment in a suit for the alleged violation of the plaintiff's Fourth Amendment right to be free from an unreasonable search and seizure. The plaintiff contended that the defendants, law enforcement officials, searched her home between 9:00 AM and 1:30 PM before the issuance of a warrant for the search, which was approved at 11:55 AM. The plaintiff stated that she was not given the warrant until 1:30 PM.

This case is notable because of the Court's finding that electronic evidence submitted by the defendants established that there was no genuine dispute of material fact that the home was searched pursuant to a valid warrant. The plaintiff claimed that photos of items collected during the search were taken between 9:34 AM and 11:51 AM, and based this assertion on data in the Apple preview program. This program actually indicated the photos were taken in 2000 - a clear error. The defendants' submitted uncontradicted evidence from an expert that the photos internal metadata indicated they were taken between 1:34 PM and 3:52 PM. One of the photos showed a digital clock reading, '2:04'. The internal metadata of this photo showed it was taken at 2:06 PM.

The plaintiff's cell phone indicated that she phoned her son at 6:48 PM. She testified that she called her son right after the police left her home, so the phone records also helped established that the police visited her home later in the afternoon rather than earlier in the morning.

The plaintiff consented to the police reviewing phone numbers on her phone to see who she had called recently, and the phone was among the items seized in the search.