Will the new proportionality rule in federal discovery help plaintiffs or defendants? O’Connor v. Uber may be the first test.

Author: Michael S. Dorsi

Effective December 1, 2015, new amendments to Federal Rule of Civil Procedure 26 took effect. Notably, Rule 26(b)(1) now requires that discovery be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, . . . and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Initial published responses viewed this rule as pro-defendant.[1] Some suggested that this was a rule designed to address large company versus company disputes not appropriate for other types of cases.[2] Plaintiff-side employment lawyers were particularly concerned because their cases often require defendants to disclose far more in discovery than their clients disclose.

However, it seems that the first high profile test of this new rule came out in favor of employment class action plaintiffs—at least at the magistrate judge level. In O’Connor v. Uber Technologies, Inc. (N.D. Cal. Case No.  13-cv-03826-EMC (DMR)), Uber propounded an interrogatory and five requests for production of documents concerning all communications with over 1,700 of the putative class members.[3]

Invoking the new proportionality requirement in Rule 26(b), Magistrate Judge Donna Ryu held that “ Uber’s wildly overbroad discovery requests fail Rule 26(b)’s proportionality requirements.”[4] Judge Ryu continued, “While Uber may be entitled to conduct discovery that is probative of the Borello factors, it may do so through appropriately targeted means, rather than calling for information about every class member contact with class counsel. Again, Uber fails to meet Rule 26(b)’s proportionality test.”[5]

Concerned employee-side plaintiffs lawyers should of course remain vigilant, but there is a lesson from O’Connor v. Uber concerning discovery. Deep-pocketed defendants will often try to outspend a plaintiff. The new proportionality requirement in Rule 26 can help individuals and less deep-pocketed litigants fight back.



[1] See, e.g., Henry J. Kelston, FRCP Discovery Amendments Prove Highly Controversial, Law360.com, available at www.law360.com/articles/512821/frcp-discovery-amendments-prove-highly-controversial (discussing comments by Prof’s Paul Carrington and Arthur Miller)

[2] See, e.g., id. (“To the extent that excessive discovery costs are a problem, the problem exists in a very small percentage of high-stakes and, often, highly contentious cases.”)

[3] See O’Connor v. Uber Technologies, Inc. (N.D. Cal. Case No.  13-cv-03826-EMC (DMR)) (Dkt. No. 458.),

[4] Id. at p. 6:10–11.

[5] Id. at p. 7:8–11.

Four Key Ways Attorneys Can Help an Expert Witness Perform their Best

Scripta Ad Astra is extremely pleased to present a guest post by Michal Longfelder, Esq.  Ms. Longfelder is an expert witness in the field of HR law and workplace investigations.

Author: Michal Longfelder, Esq.

We, as expert witnesses, often provide a necessary and critical part of your litigation strategy. By speaking to unique questions or facts, we can be a significant element of a successful outcome.


1. Know why you want me as your expert witness and for what purpose

Like most expert witnesses, while I can opine on a range of subject matters; I need to know exactly how I can be most helpful.  Take the time to learn about and understand my background so you are sure that I am best suited for this case.    For example, many attorneys do not realize that the HR function has evolved into specific areas of specialization and, as a result, many HR professionals no longer have a broad generalist background but rather, a narrow, expertise in a particular HR function such as organizational development.  If your case requires expertise in disability accommodations, make sure that the expert has substantial experience in that particular sphere of the HR function.

2. Retain me as a consultant in advance of retaining me as an expert

Many attorneys, in an earnest effort to keep litigation costs down, do not retain an expert until shortly before depositions begin.  By retaining me as a consultant early on and under your direction, earlier, we will both know how I view your case’s relative strengths and weaknesses without being subject to discovery.  Questions such as whether there are enough “good facts” to make it worth litigating are better answered sooner than later. Retaining me early as a consultant also affords you the opportunity to consider the settlement value of your case or whether my opinions have implications for other aspects of your litigation strategy.

When carefully selected and utilized, expert witnesses can strengthen your case to opposing counsel and a jury.   By planning in advance why, when and how to make the best use of my expertise and experience, you and your client will have confidence in the expert witness you have selected.

3. Take the time to prepare me for deposition

I am also an attorney, so counsel often assumes I do not require much, if any, prepping for deposition.  Here, you are the expert on the case and I need to learn from you.  Tell me about the weaknesses you perceive will be a challenge. Most importantly, tell me what questions I should expect from opposing counsel so I can think about how I will respond.

4. Think about my role at trial

Will you want me in the role of “storyteller” who summarizes the relevant information and provides guidance as to how the jury should assess and interpret the information presented by others?  Or would I be more useful testifying on a discrete but critical issue in the case?  Perhaps I will be part of building the facts necessary to effectively try or defend the case?  Finally, consider whether I will be more effective testifying for a shorter or extended period of time.


When carefully selected and utilized, expert witnesses can strengthen your case to opposing counsel and a jury.   By planning in advance why, when and how to make the best use of my expertise and experience, you and your client will have confidence in the expert witness you have selected.


Michal Longfelder, founder and principal of Employment Matters, is an employment attorney with an exclusive focus on workplace investigations, internal mediations and executive coaching.   She may be reached at WWW.EMPLOYMENTMATTERS-ML.COM michal@employmentmatters-ml.com

Tel: 415-297-3285


The Legislature’s (Temporary) Overhaul of the Demurrer Procedure

Author: Scripta Ad Astra Staff

A party in a civil action may object to a complaint, cross-complaint, or answer by demurrer. (See Cal. Code Civ. Proc. § 430.10.) Demurrers are typically filed when the responding party alleges the pleading fails to state a cause of action. Unless the complaint fails to state a claim based on any legal theory, and the defect cannot reasonably be cured by amendment, the court will give the responding party leave to amend. Subsequent amended pleadings are vulnerable to subsequent demurrers, and extend the time the case is pending. This motion work is expensive to litigants, and clogs the already over-burdened court system.
The Legislature passed amendments to the demurrer procedure effective January 1, 2016 through January 1, 2021, at which point the statute will self-repeal its provisions. (See Cal. Code Civ. Proc. §§ 430.41, 472, and 472a.) In most civil actions,[1][1] the parties are now required to engage in a specific meet and confer process before filing a demurrer. The court has the authority to order the parties to a conference to continue the meet and confer process. The amendments also create a “three-strikes-and-you’re-out” limit to the number of times a party can amend its complaint in response to a demurrer filed before the case is at issue, and place a new time limit on the responding party’s ability to file an amended pleading prior to the hearing on demurrer. Now, the amended pleading must be filed and served before the date for filing an opposition to the demurrer. The amendments also limit the grounds upon which a party demurrers to an amended pleading following a sustained demurrer to issues that could not have been raised by the prior demurrer.

Time will tell whether these amendments will provide a substantive filter to the demurrer process, and help decrease the court backlog in Law and Motion Departments.

[1][1] This section does not apply to the following civil actions: (1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution; and (2) A proceeding in forcible entry, forcible detainer, or unlawful detainer

A Case of Mistaken Identity

Author: Katy M. Young

Nearly every entrepreneur has fretted over selecting a name for her business. Once selected, enormous amounts of resources are dedicated to building a brand behind that carefully selected name. Some savvy business owners even go so far as to obtain trademark protection for the name of their business and the goods or services they offer. But what happens when even the most conscientious entrepreneur is faced with unscrupulous competition in the marketplace in the form of a similar business that insists upon using your name? Trademark lawyers can add another real risk to the parade of horribles that can occur when there is marketplace confusion over a business name: wrongfully being named in a lawsuit. Behold the story of mistaken identity, and how Ad Astra took care of the problem quickly and inexpensively.

Ad Astra’s client is a consulting business in Oakland, we’ll call them ABC, Inc. for the purpose of this story. ABC, Inc. registered a trademark for its name for the provision of  consulting services. After some time, another business called ABC Partners, which sometimes went by the name ABC Brokerage, started offering similar services, but in Southern California instead of Northern California. ABC, Inc. sometimes gets phone calls for people trying to reach ABC Partners/Brokerage, and at one point, ABC Partners/Brokerage copied ABC, Inc.’s website and used it as their own! ABC, Inc.’s trademark lawyers have written letters to ABC Partners/ABC Brokerage demanding that they stop using the name “ABC,” but they haven’t had the money to bring a trademark infringement lawsuit.

As if the confusion in the marketplace weren’t bad enough (i.e. phone calls for one business going to the other), ABC Partners/ABC Brokerage became involved in an allegedly illegal medical cannabis dispensary in Upland, California and when the City of Upland sued to shut down the dispensary, it named ABC, Inc. as a defendant right along with ABC Partners and ABC Brokerage!  Even being named in a lawsuit that you had nothing to do with can be devastating to a business because of the high cost of participating in litigation.

As ABC, Inc.’s General Counsel, Katy Young called the City Attorney for the City of Upland within 15 minutes of the complaint being served and gently explained that this is  a case of mistaken identity, and ABC, Inc. has nothing whatsoever to do with the matter—except that ABC, Inc. also had a cause of action against ABC Partners/ABC Brokerage. When the City Attorney became obstinate and insisted on keeping ABC, Inc. in the litigation, forcing them to prove a negative, Ms. Young declared her intention to file a motion under California Code of Civil Procedure Section 128.7, which would have told the Judge that ABC, Inc. felt the litigation was frivolous. It also would have forced the City plaintiff to come forward with affirmative evidence showing why it thought that ABC, Inc. was a proper defendant even after being faced with the information that ABC, Inc. was a competitor of ABC Partners/Brokerage. No such information existed. The City had simply been lazy about the investigation and cast too wide a net.

Ms. Young also reached out to the other defendants named in the matter, including ABC Partners/Brokerage, and politely asked them to call the City’s attorney to explain that ABC, Inc. was not involved, else ABC Partners/Brokerage would face a cross-complaint for trademark infringement and equitable indemnity. Recognizing the danger of fighting a two-front war, ABC Partners/Brokerage’s attorney contacted the City Attorney and averred that ABC, Inc. is not affiliated with ABC Partners/Brokerage in any way. Within 10 days from service, the City’s attorney dismissed the complaint against ABC, Inc., thereby saving Ad Astra’s client countless thousands of dollars in litigation expenses. The tactic here was Teddy Roosevelt style foreign policy: speak softly but carry a big stick.


Tips to Help Your Organization Become Data Breach Ready in 2016

Author: Meaghan Zore

Are you ready for a data breach?  At least 222 data breaches occurred in 2015 affecting at least 159,436,735 records, according to the Privacy Rights Clearinghouse, a California nonprofit corporation that tracks trends in data privacy. There’s little reason to believe that 2016 is going to see a downtrend in these numbers. Already this year, Time Warner Cable reported a data breach that affected 320,000 of its customers’ records.[1] Given these numbers, it’s no longer a question of “if” a system will be breached, but “when.”

January 28th is Data Privacy Day.  Here are 3 steps to becoming data breach ready in 2016:

  • Establish a Privacy Training and Awareness Program

When we hear of data breaches, often, the image of a nefarious hacker comes to mind. However, 91 of the 222 data breaches in 2015 were caused by unintentional actions, such as misdirecting emails containing sensitive information, lost laptops or smartphones, and improper disposal of non-electronic data. These poor data handling practices resulted in a minimum of 6,090,152 breached records. Having a world-class privacy policy is useless if your organization’s employees are unable to put the policy into practice. When employees understand your organization’s data handling expectations, including how to effectively implement your company’s privacy policy into their day-to-day work practices, data breach incidents decrease.

  • Conduct a Privacy Impact Assessment

A Privacy Impact Assessment (PIA) is an analysis of how personally identifiable information is collected, used, shared, and maintained within an organization. Examples of various PIAs can be found on the Federal Trade Commission’s website. You can use a PIA to manage data risks and assess the benefit of engaging in certain data handling practices. Conducting a PIA will help you to better understand and address your company’s  vulnerabilities.

  • Develop a Data Breach Response Plan

A data breach response plan is a course of action intended to reduce the risk of unauthorized data access and to mitigate the damage caused if a breach does occur. At a minimum your data breach response plan should consist of the following: (1) a point person to take charge in the event of a data breach and act as a liaison between various stakeholders and partners; (2) contact information for relevant stakeholders and third-party service providers; (3) procedures for analyzing and containing the damage caused by a suspected data breach; (4) measures to mitigate the damage done and prevent future breaches; and (5) relevant insurance and credit bureau information.

In 2015, companies incurred an average cost of $154 per breached record and were exposed to a consolidated total cost of $3.8 million per data breach.[2] Breaches are going to happen, but preparation will be key to minimizing the damage done to your organization and your clients in 2016 and beyond.

About the author:  Meaghan Zore, founder and principal of Zore Law, advises entrepreneurs and emerging companies on a wide range of legal matters such as business formations, intellectual property issues, commercial agreements and data and privacy considerations. In addition to her practice, she teaches Advanced Civil Procedure: Electronic Discovery and Information Privacy law at Indiana University Robert H. McKinney School of Law.  She may be reached at www.zorelaw.com meaghan@zorelaw.com. Tel: 415-347-0004


[1] http://www.privacyrights.org/data-breach

[2] http://www-03.ibm.com/security/data-breach/