N.D. Cal.: Requests can't be 'relating to', but objections must still be stated

Yesterday, Judge Yvonne Gonzalez Rogers issued an order in Moore v. Pflug Packaging & Fulfillment, No. 17-cv-05823-YGR, 2018 U.S. Dist. LEXIS 69941 (N.D. Cal. Apr. 25, 2018) granting in part the plaintiff's request to compel the defendant to amend its responses to disclose whether documents have been withheld on the basis of objections. Rule 34(b)2)(C), states that an "objection must state whether any responsive materials are being withheld on the basis of that objection.". The defendant contended that the use of the phrase, 'relating to', in the request made them unduly vague.

The court held that, "In light of Rule 26's proportionality requirement, the Court recognizes that parties should avoid using broad terms such as "RELATING TO" in discovery requests and in this regard, finds plaintiff's requests deficient." Id. at *4. However the order also states that, "[d]espite a valid objection made on the basis that a request is facially vague, ambiguous, and overbroad, or any other basis for that matter, a responding party still 'must state whether any responsive materials are being withheld on the basis of that objection.'" Id. at 5. In particular Judge Rogers faulted a response which states the defendant was withholding draft manuals and handbooks on the basis of attorney-client privilege and as work product because the objection doesn't indicate if the final version of such documents are withheld. A response indicating that monthly statements in the date range between January 1, 2012 to January 1, 2017 would be produced was defective when made to a request for monthly statements from January 1, 2012 to the present.

Judge Rogers concluded that, "Despite a valid objection made on the basis that a request is facially vague, ambiguous, and overbroad, or any other basis for that matter, a responding party still 'must state whether any responsive materials are being withheld on the basis of that objection.'" Id. at 7.

Subpoenaing Unnamed Defendants Known by IP Addresses

On April 9, 2018, Judge Steven Locke issued a decision, In re Strike 3 Holdings, LLC, 17-cv-5606, 2018 U.S. Dist. LEXIS 59961 (E.D.N.Y.), granting a motion for expedited discovery under FRCP 26(d)(1) to served subpoenas on ISPs to obtain the identity of unnamed defendants identified only by their IP addresses.

The plaintiff is the copyright owner of adult movies which are distributed on the web. The Doe defendants are alleged to have pirated the films using BitTorrent. A forensic investigator employed by the plaintiff was able to identify IP addresses in the BitTorrent file distribution network and determine how many copies of the movies were made.

A second consultant used the Wireshank program to verify the IP addresses.

While the Court found good cause for expedited discovery, and agreed to issue Rule 45 subpoenas, it limited the plaintiff to requesting the names and addresses of the individuals to whom the IP addresses were assigned but barred disclosure of their phone numbers and email addresses. The ISPs were instructed not to directly provide the plaintiff with names and addresses but instead serve the subscribers with a copy of the subpoena and the court’s order. The subscribers will then have 60 days to file a motion to quash. After 60 days a failure to contest the subpoena means the ISP has to disclose the names and addresses in 10 days to Strike 3 or file it’s own motion to quash.

TONIGHT IS THE THIRD ANNIVERSARY OF LITIGATION SUPPORT TIP OF THE NIGHT. TIPS APPEAR EACH NIGHT, 365 NIGHTS A YEAR.

E.D.N.Y. Decision: Don't Have Your Paralegals PDF Emails

On March 31, 2018, Judge Anne Shields of the United States District for the Eastern District of the New York, issued a decision in Sands Harbor Marina Corp. v. Wells Fargo Ins. Servs. of Or., 09-CV-3855 (J5) AYS), 2018 U.S. Dist. LEXIS 58729 (E.D.N.Y. Mar. 31, 2018), rewarding reasonable costs to the recipient of a FRCP 45 subpoena, Dogali Law Group, served on it by the defendant, WFIS.

As part of its decision, the court considered the reasonableness of fees related to services provided by the firm's support staff. Notably the court found that charges of $90 - $125 per hour for paralegals are reasonable. Among the paralegal tasks that Dogali sought reimbursement for were the copying of documents and email for its production in response to the subpoena. WFIS offered the services of its electronic discovery vendor to do the copying. Judge Shields faulted Dogali for how the paralegals prepared its production:

"Rather than explore a more efficient and economical approach for the production, DLG opted to have paralegals print each email individually and then convert it into a pdf. WFIS should not be required to bear the cost of DLG's unilateral decision to utilize a more time consuming approach. Thus, DLG is barred from recouping the 24 paralegal hours spent copying thee mails and creating the pdfs." Id. at 22-23.

The fact that court barred recovery for this relatively small part of its overall request for $39,709 in fees, shows an attention to the specifics of how production is conducted and an unwillingness to overlook needlessly repetitive work that can easily be automated.