Re: PACER e.Digital requesting to modify the Amended scheduling order
in response to
by
Message: PACER (not the MH ruling)
Thanks Silver .Excerpts From today pacer , e.DIGITAL is angry regarding judge
Watanabe ruling re cost of electronic discovery by requesting party
Pursuant to Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b), Plaintiff
e.Digital Corporation (“e.Digital”) hereby objects to three provisions in Magistrate Judge
Watanabe’s Amended Scheduling Order entered on December 14, 2010 (“Amended Scheduling
Order”) (Dkt. No. 329) and confirmed in a Minute Order entered on January 24, 2011 (Dkt. No.
359) (“Minute Order”) in which the Magistrate Judge denied e.Digital’s Motion for Clarification
of Amended Scheduling Order. e.Digital respectfully requests that the Court set aside or modify
Sections 6(g), 8(b)(3) and 8(b)(5) of that order.
As explained more fully below, the Magistrate Judge’s rulings are defective in three
respects. First, § 6(g) at sub-part 4 of the Amended Scheduling Order is clearly erroneous and
contrary to the law in that this provision conflicts with the express language of Rule 26(b)(2)(B)
of the Federal Rules of Civil Procedure and related case law by broadly shifting the cost of
electronic discovery to the requesting party without first requiring a showing that the discovery
requests create an undue burden or cost. Second, § 8(b)(3) of the Amended Scheduling Order is
clearly erroneous in that this provision incorporates both e.Digital’s and Defendants’ competing
and conflicting proposals related to depositions of prosecuting attorneys. Lastly, § 8(b)(5) of the
Amended Scheduling Order is clearly erroneous in that it includes both e.Digital’s and
Defendants’ competing and conflicting proposals regarding the time limits for Defendants to
depose third parties, but omits the parties’ agreed provision regarding the time limits for Plaintiff
to depose third parties. e.Digital respectfully moves that each of these provisions in the
Amended Scheduling Order be set aside and/or modified to come in line with the Federal Rules
of Civil Procedure (in the case of § 6(g), sub-part 4) and to clear up their inherent
ambiguity/error (in the cases of §§ 8(b)(3) and (5)).
e.Digital Corporation (“e.Digital”) hereby objects to three provisions in Magistrate Judge
Watanabe’s Amended Scheduling Order entered on December 14, 2010 (“Amended Scheduling
Order”) (Dkt. No. 329) and confirmed in a Minute Order entered on January 24, 2011 (Dkt. No.
359) (“Minute Order”) in which the Magistrate Judge denied e.Digital’s Motion for Clarification
of Amended Scheduling Order. e.Digital respectfully requests that the Court set aside or modify
Sections 6(g), 8(b)(3) and 8(b)(5) of that order.
As explained more fully below, the Magistrate Judge’s rulings are defective in three
respects. First, § 6(g) at sub-part 4 of the Amended Scheduling Order is clearly erroneous and
contrary to the law in that this provision conflicts with the express language of Rule 26(b)(2)(B)
of the Federal Rules of Civil Procedure and related case law by broadly shifting the cost of
electronic discovery to the requesting party without first requiring a showing that the discovery
requests create an undue burden or cost. Second, § 8(b)(3) of the Amended Scheduling Order is
clearly erroneous in that this provision incorporates both e.Digital’s and Defendants’ competing
and conflicting proposals related to depositions of prosecuting attorneys. Lastly, § 8(b)(5) of the
Amended Scheduling Order is clearly erroneous in that it includes both e.Digital’s and
Defendants’ competing and conflicting proposals regarding the time limits for Defendants to
depose third parties, but omits the parties’ agreed provision regarding the time limits for Plaintiff
to depose third parties. e.Digital respectfully moves that each of these provisions in the
Amended Scheduling Order be set aside and/or modified to come in line with the Federal Rules
of Civil Procedure (in the case of § 6(g), sub-part 4) and to clear up their inherent
ambiguity/error (in the cases of §§ 8(b)(3) and (5)).
-----------------------------
The Magistrate Judge’s affirmation of his decision to
shift e-discovery vendor costs to the requesting party without first requiring a showing of undue
burden or expense is clearly erroneous and contrary to the Federal Rules of Civil Procedure and
related case law. In addition, the failure to clarify the inconsistency present in §§ 8(b)(3) and
8(b)(5) of the Amended Scheduling, despite the parties agreement that these provisions must be
corrected, is clearly erroneous. Accordingly, e.Digital renews its objections to the Amended
Scheduling Order, objects to the Minute Order and respectfully requests that the Court modify
the Amended Scheduling Order to correct the conflicting provisions in §§ 8(b)(3) and 8(b)(5)
1 Magistrate Judge Watanabe issued the Minute Order before the expiration of the 14-day
time period in which a moving party (i.e., e.Digital) was permitted to file a reply under
D.C.COLO.LCivR 7.1(C). Therefore, e.Digital did not have an opportunity to address the
arguments raised in Defendants’ Opposition.
and to clarify that § 6(g)(4) is subject to Rule 26(b)(2)(B) such that e-discovery costs will be
borne by the responding party unless and until the responding party establishes and the Court
finds that the requested e-discovery is not reasonably accessible because of undue burden or cost.
shift e-discovery vendor costs to the requesting party without first requiring a showing of undue
burden or expense is clearly erroneous and contrary to the Federal Rules of Civil Procedure and
related case law. In addition, the failure to clarify the inconsistency present in §§ 8(b)(3) and
8(b)(5) of the Amended Scheduling, despite the parties agreement that these provisions must be
corrected, is clearly erroneous. Accordingly, e.Digital renews its objections to the Amended
Scheduling Order, objects to the Minute Order and respectfully requests that the Court modify
the Amended Scheduling Order to correct the conflicting provisions in §§ 8(b)(3) and 8(b)(5)
1 Magistrate Judge Watanabe issued the Minute Order before the expiration of the 14-day
time period in which a moving party (i.e., e.Digital) was permitted to file a reply under
D.C.COLO.LCivR 7.1(C). Therefore, e.Digital did not have an opportunity to address the
arguments raised in Defendants’ Opposition.
and to clarify that § 6(g)(4) is subject to Rule 26(b)(2)(B) such that e-discovery costs will be
borne by the responding party unless and until the responding party establishes and the Court
finds that the requested e-discovery is not reasonably accessible because of undue burden or cost.
----------------------------------------
and e.DIGITAL referring to following case law
Standard of Review of Magistrate Judge’s Ruling
Fed. R. Civ. P. 72(a) requires the district judge assigned to a case to modify or set aside a
magistrate judge’s order on a non-dispositive matter “that is clearly erroneous or is contrary to
law.” Under this standard a magistrate judge’s ruling will be set aside if (1) “after viewing the
record as a whole, the Court is left with a definite and firm conviction that a mistake has been
made,” or (2) “the Court finds that the Magistrate Judge abused his discretion.” Vinton v. Adam
Aircraft Indus., 232 F.R.D. 650, 655 (D. Colo. 2005) (Krieger, J.). “An abuse of discretion
occurs when, for example, the trial court fails to consider the applicable legal standard upon
which its discretionary judgment is based.” United States v. Galloway, 509 F.3d 1246 (10th Cir.
2007).
Fed. R. Civ. P. 72(a) requires the district judge assigned to a case to modify or set aside a
magistrate judge’s order on a non-dispositive matter “that is clearly erroneous or is contrary to
law.” Under this standard a magistrate judge’s ruling will be set aside if (1) “after viewing the
record as a whole, the Court is left with a definite and firm conviction that a mistake has been
made,” or (2) “the Court finds that the Magistrate Judge abused his discretion.” Vinton v. Adam
Aircraft Indus., 232 F.R.D. 650, 655 (D. Colo. 2005) (Krieger, J.). “An abuse of discretion
occurs when, for example, the trial court fails to consider the applicable legal standard upon
which its discretionary judgment is based.” United States v. Galloway, 509 F.3d 1246 (10th Cir.
2007).
20 Recommendations
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