Electronic Discovery Navigator

Court Ordered Alleged Infringer to Produce All Missing Versions of Source Code

3Com Corp. v. D-Link Systems, Inc., Case No. 03-cv-02177 (N.D. Cal. Mar. 27, 2007)

In this patent infringement action, Plaintiff 3Com Corporation ("3Com") moved to compel production of documents and sanctions against Defendant-Intervenor Realtek Semiconductor Corporation ("Realtek").

Of particular interest is the discovery dispute over the source code of the Realteck products that allegedly infringed 3Com's patents.  Realtek produced the current and several other versions of the source code and stated that "it has now produced all the versions it maintains."  3Com argued that it has "good reason to believe" otherwise.  In fact, Realtek did not dispute 3Com's claim that although many versions of generation 3.xx were produced, versions of generations 4.xx, 5.xx, and 6.xx were not.  Realtek simply stated "[t]here can be many explanations for skipping a number when mulitple versions of the code are created," and did not expound on those "explanations."

Five Things I Learned from My CIO

The recent amendments to the Federal Rules of Civil Procedure mandate accountability for electronically stored information ("ESI").  So, here are five things counsel can learn by talking to the CIO and doing so early.

1.  Where's the ESI? --  CIO knows where ESI is kept, from the typical hard drive to less obvious repositories like USB Flash Drives (as discussed in my earlier post), which have been the subject of recent litigation (as discussed here).

2.  Access to ESI -- CIO also knows who has access to the ESI in question.  Counsel would need this information to draft a litigation hold that includes all relevant persons.

3.  Stop in the name of litigation -- CIO can stop automatic deletion programs so that relevant ESI is not accidentally destroyed.

4.  Is relevant ESI reasonably accessible? -- CIO would know whether the technology exists  to reproduce ESI that has been kept in back-up tapes and the cost of retrieving that ESI.  If the relevant ESI is not reasonably accessible, the burden falls on the requesting party to justify their need for it.

5.  Your witness, Counselor -- A well informed CIO could bolster your claim that relevant ESI is not reasonably accessible.

(Source: http://www.computerweekly.com/Articles/2007/03/14/222391/cios-talk-to-your-companys-lawyer.htm.)

No Work Product Protection for Merely Selecting and Grouping Discoverable Information

Williams v. Sprint/United Mgmt. Co., Case No. 03-2200 (D.Kan. Feb. 27, 2007)

In this continuing wrongful termination saga, Plaintiffs filed a motion to compel Defendant to produce certain documents with their original bates numbers.  Defendant refused, citing the work product doctrine.  Defendant argued that production of these documents with their original bates numbers will reveal the mental impressions of its counsel.