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Be Careful What You Ask For – Reasonableness in E-Discovery Meet and Confer and Motion Practice

Be Careful What You Ask For – Reasonableness in E-Discovery Meet and Confer and Motion Practice

 Most corporate litigants are aware of the meet and confer requirement applicable to discovery disputes.  Before a party files a motion seeking discovery that the other side will not provide, courts expect the attorneys for the parties to work out as much as they can and, if there is a remaining dispute, only then should it be brought to the court’s attention.  A recent decision from a federal court in California is a good reminder that sometimes you can ask for too much and get less than the other side offered.

Boston Scientific Corp. v. Lee, 2014 U.S. Dist. LEXIS 107584 (N.D. Cal. August 4, 2014), involves a fairly standard fact pattern.  Dongchul Lee, a biomedical systems engineer, left one company (Boston Scientific) and began working for a competitor (Nevro).  Lee’s former employer, Boston Scientific, then sued Lee for violation of a confidentiality agreement and theft of trade secrets.  Boston Scientific alleged that Lee unlawfully took work product and trade secrets from Boston Scientific to a competitor.  During discovery Boston Scientific sought a forensic image of two laptop computers that Lee used in his work at Nevro.  The parties agreed on most of the parameters of discovery, but they could not agree on this point.  Boston Scientific issued a subpoena seeking forensic images of the laptops, and Nevro filed a motion asking the court to quash the subpoena.

Boston Scientific argued that it needed forensic images of the laptops to determine (i) where Lee utilized a thumb drive taken from Boston Scientific, (ii) whether Lee deleted relevant materials from the laptops after Boston Scientific filed suit, and (iii) whether Lee downloaded Boston Scientific documents from his google drive while working for Nevro.   Nevro countered that (i) both of Lee’s laptops contained highly confidential trade secrets that had no relation to the case and which should not be accessible by Boston Scientific’s counsel, and (ii) the laptops contained privileged communications between Lee and counsel.

The federal court in California granted Nevro’s motion for a protective order and quashed the subpoena. The court’s primary motivation in ruling for Nevro was that, despite Nevro offering a reasonable solution during the meet and confer, Boston Scientific instead sought full images of the laptops and used Nevro’s proposal as a “fall back.”  Specifically, Nevro offered that the parties retain an independent vendor to review a full forensic image of the first laptop for pertinent information, including a review of any deleted files.  Although it pressed for full images from both computers in its subpoena, Boston Scientific suggested to the court that Nevro’s proposal would be a reasonable “fall back.” The court had none of it:

[T]o allow Boston Scientific to now seek shelter from a fallback position that Nevro previously tendered in good faith would make a mockery of both parties’ obligation to meet and confer in good faith from the start.  The time to tap flexibility and creativity is during meet and confer, not after.

[T]o accommodate Boston Scientific’s demand would “encourage litigants to demand the moon thinking they can always fall back to something reasonable. They should be reasonable from the start.”

Id. at *22, quoting Straight Path IP Group, Inc. v. Blackberry Ltd., 2014 U.S. Dist. LEXIS 92787, 2014 WL 3401723, at *1 (N.D.Cal. July 8, 2014) (emphasis added).

So, instead of having the a full forensic image of the first laptop available for review by an independent vendor, which would likely have led to a comparable analysis of the second laptop if offending materials were found on the first, Boston Scientific got neither. Ouch.  Be careful what you ask for.

— Eric E. Hudson