For counsel who missed Victory Stanley's warning to conduct
quality control on keyword search terms, attorneys
H. Christopher
Boehning and Daniel Toal point to a recent ruling that states loud
and clear: Counsel who fail to conduct quality control risk
involuntarily waiving privilege.
Story here.
“People make mistakes.” This simple three word sentence is how Chief Justice John Roberts begins his opinion in Conkright v. Frommert, No. 08-810 (Apr. 21, 2010). He goes on to add: "Even administrators of ERISA plans." Then he explains how complicated those plans can be. As a former ERISA litigator, I know he's right, as I have read far too many ERISA plans myself. But let me tell you, as an attorney who left ERISA to focus solely on e-Discovery in 2006, it's nothing compared to ESI plans.
More judges need to learn the lesson of complexity and the impossibility of perfection in all situations, not just ERISA plans. The lesson is especially needed in the area of electronic discovery, where mistakes are inevitable in large projects. Everyone involved in e-discovery needs to learn that a mistake is not automatically negligence. In the language of the law, res ipsa loquitur does not apply. A missing ESI is not equivalent to a barrel falling on your head! It depends on the facts and circumstances. It depends on how bad a mistake it was.
As a long-time reader of EDD Update and first-time poster, I am delighted to use my inaugural post to bring you something hot off the presses - the Supreme Court opinion in City of Ontario v. Quon.
The media commentary has already started on what it all means for privacy rights and the answer may be "not a whole lot," since the Supremes largely punted on the privacy issue and intentionally sought to keep the ruling narrow.
The majority opinion assumes arguendo that Sgt. Quon had a privacy right in text messages sent and received via his work-issued pager, but concludes that the search of the texts by his employer, the City, was nonetheless reasonable and the Fourth Amendment was not violated, reversing the 9th Circuit.
No rehash of the facts or extensive analysis in this post, designed solely to alert you to the decision (although there is certainly more to be said).
Without further ado, here is the lnk to the syllabus and opinion:
http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf
Judge Scheindlin entered a second amendment to the Pension Committee opinion today, May 28, 2010. Please see my e-Discovery Team blog for the entire text of the Order. "Likely constitutes negligence" is changed to "could." The "all employees" phrase is also modified to "those with any involvement." We can all breathe a little easier this weekend.
I heard this correction by Judge Scheindlin came about as a result of a question asked of her at a CLE event this week. Anyone care to share the details of that? Who gets the credit for bringing this glitch in wording to her attention?
(Organ music subsides) Thank you for coming. We're gathered to remember FRCP Rule 37(e), our Safe Harbor. Deformed by breech birth, Safe Harbor was unloved, ridiculed and scorned. Sure, Safe Harbor never did anyone a lick of good, but what do you expect from a three year old? Rest in peace, 37(e), we hardly knew ye. Rule 26(f) will host the wake.
I confess I never liked Rule 37(e)--née 37(f)--but I never wished it the ignominous end it met in Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010). It was always a struggle to get 37(e) to actually bail anyone out of an e-discovery flub up. Advocates trotted out 37(e), and courts paid it lip service; but, its jurisprudence seemed confined to cases explaining why it didn't apply to the facts presented. Rule 37(e) is to spoilation sanctions what duck-and-cover was to nuclear attack.
Still, sooner-or-later, I imagined there would be an instance of innocent data loss--the crashed drive or rotated tape--that would let 37(e) step up and save the day. Right?
Wrong. If 37(e) can't save the bacon in Wilson v. Thorn Energy, it might as well be dead.
In re A & M Fla. Props. II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010)
Where plaintiff’s counsel “failed in his obligation to locate and produce all relevant documents in a timely manner” by failing to gain a sufficient understanding of plaintiff’s computer systems resulting in significantly delayed production of relevant documents, the court declined to impose terminating sanctions or an adverse inference but ordered monetary sanctions against plaintiff and counsel in an amount to be determined.
More: here at ediscoverylaw.com.
Hot Talk: New York District Court Judge Shira Scheindlin's Pension Committee ruling remains Topic A in e-discovery circles, with her assertion that screw-ups on litigation holds can often constitute "gross negligence" and subject parties to severe discovery sanctions.
Many folks are analyzing the case in the context of another recent decision by Texas judge Lee Rosenthal, Rimkus Consulting v. Cammarata.
There has been a lively debate on these two cases here in our EDD Update blog, including this post from Ralph Losey, and this post from John Jablonski. In our upcoming May issue of Law Technology News, we'll have two more articles on the topic, including Craig Ball's analysis in his Ball in Your Court column.
Here's a recent article from the New York Law Journal, by partners H. Christopher Boehning, Daniel Toal, and associate Rebecca Kinburn, of Paul, Weiss, Rifkind, Wharton & Garrison.
Editor's note to newbies: You can use "categories" in the right nav bar to help you find case verdicts, settlements, and rulings more quickly -- or search for other specific topics within EDD Update.
Here's the 4/2 Order by U.S. Magistrate Judge Barbara Major, declining atty sanctions and dissolving order to show cause.
I just read another opinion where the Court decided to let one side's computer expert examine an opposing party's computers. The Court seemed more concerned with who would pay for the exam than what its consequences might be.
I'm a lawyer and computer forensic examiner, and I make part of my living doing just the sort of examinations the court ordered. I've done a whole bunch of them. So, while part of me wants to encourage courts to order more forensic exams — and I can surely attest to their efficacy in resurrecting data thought gone and exposing case-making evidence — the angel at my ear requires me to softly whisper, "WHAT THE HECK WERE YOU THINKING, JUDGE?!?
Why didn't you use a neutral?
I could say, "You never know what a computer forensic examiner will find," except I KNOW what we find: We find trouble.
Continue reading "An Open Letter to Judges About Computer Forensic Exams" »
Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010)
Plaintiff sought to compel the production of documents and information regarding defendants’ Malaysian bank accounts pursuant to a subpoena served on United Overseas Bank’s New York Agency (“UOB NY”). UOB NY was not a party to the underlying action, nor was its parent company. Despite substantial evidence that production of the requested information was prohibited by Malaysian law and that violation of the law could subject a person to civil and criminal penalties, the court concluded that compliance with the subpoena was warranted and ordered UOB NY to produce the information within two weeks.
Read the entire post here at ediscoverylaw.com.
With the Winter Games in high gear, it is hard not to think of the headline for the main card of an e-discovery boxing match between two federal judicial heavy hitters:
Rosenthal vs. Scheindlin
The introductions of a boxing announcer come to mind reading Judge Rosenthal's recent opinion in Rimkus v. Cammarata, 07-cv-00405 (SDTX Feb. 19, 2010) and her subtle (or not so subtle depending on how much is read into her opinion) critique of Judge Scheindlin's very much discussed opinion in The Pension Committee of Montreal, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 15, 2010). And in this corner, at the forefront of e-discovery, legal holds and the duty to preserve all relevant evidence... hailing from the toughest city in the world - New York... Ms. ESI... Judge Scheindlin. And in this corner... mover and shaper of the Federal Rules of Civil Procedure... Champion of the Safe Harbor... hailing from the toughest state in the Union - Texas... Ms. FRCP amendments... Judge Rosenthal.
Continue reading "Judge Scheindlin Correction: Pension Committee Opinion" »
Whatever the new media version of "EXTRA! EXTRA!" READ ALL ABOUT IT!" might be, imagine me doing it. Federal Judge Shira Scheindlin, famously of the Zubulake decisions that were the crucible of modern e-discovery practice, has done it again. In the course of an 87-page opinion and order, Her Honor invokes the only line anyone ever remembers from George Santayana and sanctions 13 plaintiffs for negligence and gross negligence in connection with their--ahem--'lackluster' preservation of and search for ESI.
In a must read decision for attorneys, consultants and ediscovery vendors, the Court in a well-written opinion chastised and awarded attorney fees and costs against the defendant whose IT representative "exaggerated" the cost of processing ESI.
Starbucks Corp. v. ADT Sec. Servs.,2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009). In a breach of contract and fraud case, Starbuck's brought this action based on ADT's installation of proprietary security systems in violation of the contact between the two parties. After filing the action, Starbucks filed a motion to compel to obtain archived e-mails from the defendants. The Court discussed in detail ADT's archived e-mail systems involving the storage of e-mail from 2003 - 2006. ADT argued the system was was "so cumbersome, . . . that it is not 'reasonably accessible because of undue burden or cost.'" ADT argued it was not accessible because of their selection of an archiving system that failed in its essential function of allowing ESI to be searched. . . . (read more).
Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)
When responding to an email communication from his attorney, defendant mistakenly sent his message to a third party. As a result, the email was eventually provided to opposing counsel in the litigation. Plaintiff’s counsel refused to return the email upon defense counsel’s request and filed a motion for a protective order to which the email was attached. Defendants then filed a motion to exclude plaintiff’s use of the email. Defendant David Muhs explained that the mistaken transmission occurred when the autofill feature on his email program supplied the wrong address in place of that of the intended recipient. Conducting its analysis pursuant to Fed. R. Evid. 502, the court determined that privilege had not been waived. Continue reading here.
The National Law Journal reports that a federal judge has thrown out all criminal and civil charges related to the stock options backdating scandal at Broadcom Corp. amid accusations of prosecutorial misconduct.
Here's the first version of the story:
RT @leecomms: Corcoran Group sanctioned for ediscovery failure and deleting e-mails in spite of repeated warnings http://tinyurl.com/yzzt68s (New York Law Journal article).
I was asked by an inhouse lawyer for a Fortune 250 company "do we really need to issue a formal litigation hold notice to key employees when faced with a lawsuit or trigger event?" Without revealing my short answer, a philosophical debate ensued over the status of case law in the United States, the Federal Rules of Civil Procedure and current trends. As with all great problems of the law, she was able to change her hypothetical question to achieve the answer that I think she wanted. "If an organization is responsible, takes steps to preserve relevant evidence after a trigger event, interviews key players, works with IT to preserve relevant records and discharges its duty to preserve in good faith, do I still need to issue a formal litigation hold notice?" Since my response was somewhere in the neighborhood of "it can't hurt" the debate continued on.
Continue reading "Do You Need To Issue A Formal Litigation Hold? Vermont District Court Says Yes." »
U.S. District Court Judge Reggie Walton recently dealt what many in the legal profession hope is the death blow to the Federal Trade Commission’s most recent efforts to extend consumer-protection regulations to attorneys engaged in the practice of law.
In an Oct. 29 decision in which he promised to provide a more detailed memorandum opinion by the end of November, Judge Walton stated he did not accept the FTC’s argument that law firms were “creditors” within the meaning of the Fair and Accurate Credit Transactions Act of 2003. As a result, he ruled that law firms aren't required to comply with the FTC’s so-called Red Flags Rule.
The FTC may appeal.
Continue reading "Lawyers Can Ignore Red Flags, But What About Vendors?" »
Since
his indictment for allegedly stealing personal data from 170 million credit and
debit card accounts, the federal government has made 28-year-old Albert
Gonzalez out to be a hacker genius.
Continue reading "Miami Hacker: Computer Genius or Common Hood?" »
A few months ago I wrote one of my all time favorite blogs entitled The Chimney Sweep Boy and the Goldsmith: the Ancient Origins of the Doctrine of Spoliation. Here I tell the story of the old English case that originated the doctrine of spoliation, Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722). This 1722 decision was recently cited by Judge Grimm in a more recent case, Goodman v. Praxair Services, Inc. _F.Supp.2d_, 2009 WL 1955805 (D.Md. July 7, 2009). Judge Grimm pointed out how the Armory case involved a story of a chimney sweep boy that could be straight out of a Charles Dickens novel. Dickens thus became the theme for my write-up of the Armory and Goodman cases.
The general rule in the United States is that litigation hold notices are not discoverable. Litigation hold or legal hold notices are usually internal letters, memorandum or e-mails directing members of an organization to preserve evidence in support of a litigation hold implemented by the organization related to an event that has triggered the duty to preserve evidence.
Two reasons exist for protecting the production of litigation hold notices. One, most notices are issued by an attorney or at the direction of an attorney and contain attorney-client privileged communications or constitute attorney-work product. Two, at least one court has held that disclosure of litigation hold notices “could dissuade other businesses from such instructions in the event of litigation.” Gibson v. Ford Motor Co., 510 F.Supp.2d 1116, 1123 (N.D. Ga. 2007).
Continue reading "Court Orders Prod. of Lit Hold Letters after Allegations of Spoliation" »
It's fitting that my friend and fellow blogger Ralph Losey hails from Orlando--the big House of the Mouse--because reading his fine posts can feel like careening along on one of the really good Disney attractions--the ones once called "E-ticket" rides. Ralph's animated prose takes wonderful twists and turns punctuated by delightfully silly visuals and all steeped in solid American values. I always glean something good from Ralph's scholarship, even if only a different, well-put point of view.
Ralph and I have a good-natured feud over the Adams v. Dell decision that I won't belabor here. Let's save those savory details for a post after the delicious steak dinner he buys me when I win our bet. I'm exercising my mocking rights now, because it won't be near as much fun if I lose and have to pick up the tab.
Ralph recently posted on KCH Services, Inc. v. Vanaire, Inc. and kindly noted that he agreed with me concerning the case. Hearing that I'd stumbled onto an acorn of rectitude moved me to actually read the opinion. And, indeed, Ralph is right to side with the judge. (In fact, one can make a pretty good living siding with judges, but let's not digress).
Still, but for one fateful misstep by the defendant, KCH v. Vanaire might have been the rare case where what seemed like spoliation was actually the decent thing to do. It wasn't, and so Vanaire deserved the upbraiding it got. But please read on, and let me explain why doing wrong might have been the right thing. Our tale begins, "Once upon a time...
Continue reading "Once Upon a Time in the Kingdom of Vanaire" »
In recent legal hold workshops I have been using a phrase borrowed from the computer world - "Legal Hold 2.0." I explain it this way. In the immediate post Zubulake world, lets call it Legal Hold 1.0, courts were content just knowing that a company took the time to issue a formal litigation hold verbally or in writing.
Given the newly emerging world of e-discovery courts often asked for better legal hold procedures, but were not cracking the whip yet. Fast foward to today - post 2006 FRCP e-discovery amendments. The trend is far from tolerance for a lax legal hold business process. See Acorn v. Co. of Nassau, 2009 WL 605859, (EDNY 3/9/09) ("the failure to implement a litigation hold at the outset of litigation amounts to gross negligence.") (Awarded sanction of motion costs and attorneys fees for failing to implement a litigation hold). As detailed in the posts to EDD Update, the judiciary's patience with lawyers and litigants is waning. More and more some formal legal hold business process is required.
In D.C. last week, I spoke to a group of data security specialists and computer forensic experts about the type of case I see most frequently. Unlike most in the audience, I work in civil litigation and see little of the child porn, identity theft and hacking cases that occupy them. Much of my work concerns alleged employee data theft, so I addressed the prevelance and patterns of those cases, discussing incident response fundamentals, e.g., what to preserve and where and how to look to determine the whether, when, who and how much of proprietary data theft.
I was fortunate the day's big news story was of a lately-resigned senior programmer at Goldman Sachs arrested at Newark airport for allegedly spiriting away a copy of Goldman's trading program code. My topic seemed ripped from the headlines.
Continue reading "The Aleynikov Affair: From Newark with Code" »
From John Jablonski, partner, Goldberg Segalla*:
Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).
In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.
Continue reading "Preservation of Disaster Recovery Backup Tapes? " »
Along with Ralph Losey, Tom O'Connor and other commentators, I've painted many a pixel importuning lawyers to learn the ways of electronic discovery. Between us, we've variously employed the "M" word (malpractice), the "E" word (ethical duty), the "C" word (competitive advantage) and the "S" word (sanctions). I don't know that any of us have gotten much traction.
But now a court has used the "F" word...the one that really grabs lawyers by the short hairs: fees
On June 29, 2009, California Governor Arnold Schwarzenegger signed into law the Electronic Discovery Act. As an overview, California's new e-discovery rules are comparable to the changes to the FRCP in December 2006. The California Electronic Discovery Act amends and adds to the California Code of Civil Procedure to provide a series of procedures for a litigant to discover or object to discovery of Electronically Stored Information (“ESI”). The Act incorporates into the Code many of the same provisions regarding ESI found in the Federal Rules of Civil Procedure ("FRCP"), so practitioners familiar with the changes to the FRCP in 2006 will understand many of the new provisions in the amended Code. The Act took immediate effect and thus litigants in California courts are expected to immediately comply with them. One noticeable mention is that the act requires the parties to meet and confer regarding discovery of ESI 45 days prior to the case management conference regarding discovery in California state court.
To read the Act, please click here.
As we mark the 233rd anniversary of our nation's founding with fireworks, Sousa marches and cookouts, I'm quietly looking back a scant thirty years, to the birth of USENET, and marveling at how far that once-great network has fallen. Oddly, USENET figures prominently in an interesting new e-discovery sanctions decision.
Gather round, kids, and let L'Éminence Grise regale you with tales of yore, long before the Web, when dial-up bulletin boards were the bleeding edge and USENET messaging was bitchin'. You iPod-addled whippersnappers with your forae, blogs and tweets think it's all so new. In my day, we had to rise early and trudge through the snow to stack our TCP/IP...what's that...you don't care how pioneers poured the foundation for electronic expression and fashioned Perez Hilton from a lump of clay and a dash of silicon?
I am late to the party in discussing the case of Digicel et al v. Cable & Wireless, et al. Others, including the extraordinary Chris Dale and the magnificent Sharon Nelson, long ago put their stamp on the case. The peripatetic Sultan of Search, Jason Baron, even guest blogged it for the prolific Ralph Losey. But as it was decided "Over There," and Sir Andrew Lloyd Webber hasn't set it to music, I paid it little heed.
But lately, I'm obsessed with sensible ways to improve keyword searches and practical means to test searches before they're trotted out against vast swaths of ESI.
Mr. Justice Morgan's opinion is the rare case where a jurist closely analyzed the efficacy and burden of particular keywords for electronic search--an undertaking that U.S. Magistrate Judge John Facciolla artfully characterized as a fool's errand for lawyers and judges. Still, once we change the "esses" to "zeds," there's much we Yanks can learn from the Digicel decision.
Continue reading "Over There: Where Angels Have No Fear to Tread" »
My friend Marni Willenson, a noble, energetic advocate for Farmworker Justice, shared a new appellate decision from New Jersey addressing whether employees have reasonable expectations of privacy in privileged e-mails sent and received using employer systems. It's one of those frustrating cases where the court reached a just result but made an unholy mess of the law along the way.
In Stengart v. Loving Care Agency, Inc. et al. (Docket No. A-3506-08T1, published June 26, 2009) , a three judge panel of the New Jersey Appellate Division ruled that, notwithstanding written policies to the contrary, an employee has a reasonable expectation of privacy in e-mails sent and received with her personal counsel via an employer-owned laptop. The Court remanded the case for a determination of appropriate sanctions, including possible disqualification of the employer's counsel. The court could have reached the same result on a narrow rationale, but, badda bing, chose a path that will make e-discovery harder and riskier.
Defense counsel in Atlanta tried the old "pig in a poke" defense recently. Senior Judge J. Owen Forrester figured it was a ruse, just like the medieval derivation of the phrase, and sanctioned defendants. Kipperman v. Onex Corp., 2009 WL 1473708 (N.D.Ga., May 27, 2009). Judge Forrester called it a "textbook case of discovery abuse" and imposed sanctions of over One Million Dollars. The new case is all written up in this week's e-Discovery Team Blog.
Could Judge Sotomayer be the first Justice to sit on the Supreme Court who has written technology related opinions before joining the court? Since my last blog, I have been doing some research on Judge Sotomayer, the nominee for the Supreme Court. I thought I would share with you some cases that may be of interest to those of us involved in eDiscovery.
Although, these are not specific eDiscovery opinions, they are interesting as they give some insight into her technology savviness.
Suppose a company sues a former high level employee claiming the employee absconded with proprietary company data in order to use the data in a competitive venture. If the former employee installs a file wiping program called SureDelete on her laptop and wipes files, has the defendant committed spoliation? Should sanctions necessarily follow?
What if the defendant only deleted highly sensitive personal data, e.g., personal income tax data and pornographic material, but swears not to have deleted any information relevant to the issues in suit? Even with a litigation hold in place, can't a litigant continue to delete irrelevant and non-discoverable ESI? I'm not asking if it's a good idea. It's risky as hell. I'm only asking if it's per se sanctionable?
Now let's add a wrinkle:
Almost 35 years ago, the late Senator William Proxmire introduced his infamous Golden Fleece awards recognizing instances of wasteful government spending. Though a few Golden Fleece honorees may have been undeserving, most were absurd misuses of taxpayer dollars and warranted the public opprobrium the award bestowed. Reading a recent opinion from a federal court in Florida, I decided that the electronic discovery industry needed its own Golden Fleece, something to highlight boneheaded moves, obstructive behavior and so forth. My goal will be to sift a snippet of sense from the ashes of error, to seek some good for all in the flubs of a few. So, I now announce the Wonder Blunder Award.
That’s a quote from U.S. Magistrate Judge David Nuffer’s 3/30/09 decision and order in Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., et al., 2009 WL 910801 (D.Utah). It’s a decision nigh overflowing with quotable quips, and one sure to elicit a few groans from companies too-wedded to custodial preservation as the primary method of legal hold. Plus, the Court’s articulation of a need for “accountability to third parties in the design of information management practices” will raise some eyebrows high enough to qualify them as a comb over.
Continue reading "“Computer gobblydegook is not confusing or prejudicial.” " »
Ralph Losey here to report on an important new opinion by the Fourth Circuit Court of Appeals ruling in favor of an employee whose employer read her personal AOL email account. Van Alstyne v. Electronic Scriptorium, _F.3d_, 2009 WL 692512 (4th Cir. March 18, 2009). The case concerns self-help e-discovery. A boss accused of sexual harassment hacked into the accuser's AOL account in search of good email to use against her. He may have also done it for kicks. Read my latest blog and judge for yourself. Aside from some interesting facts, this case raises important issues on email privacy and attorney ethics. It looks like the tide is beginning to turn in favor of individual privacy rights.
A new case out of Manhattan makes clear with the following words that all lawyers in New York who do discovery had better improve their game:
"This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or “keywords” to be used to produce emails or other electronically stored information (“ESI”). While this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar."
William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009). Download GROSS CONSTRUCTION-EDisc The opinion cites to Judges Grimm and Facciolla and their prior decisions on the need for expertise in search. This is a welcome message to attorneys like me who make their living studying and inventing ESI search methodologies. The efforts of the lawyers in this case were laughable, and once again show the need for both search expertise and cooperation. Read on for the excellent concluding paragraph by Judge Andrew Peck:
Since the Zubulake opinions, statistical sampling has taken a slow rise to fame and is just recently getting its due respect due to its measurability and defensibility. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) set an early precedent of using statistical sampling of backup tapes to determine whether they might hold relevant e-mail messages that would justify their wider restoration.
I recognize that statistical sampling may be unfamiliar territory to many attorneys and their staff, but with a little research you will see that the statistical sampling method of proof has received universal acceptance in quality assurance testing in both manufacturing and most government agencies. Even in man’s earliest history, we have seen the use of statistical tools in many different industries.
Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. Mar. 19, 2009)
In this case arising from a dispute over sales commissions, the court denied Defendant Ohio Star Forge Company’s (“OSF’s”) motions for contempt and sanctions and granted plaintiff, Technical Sales Associates, Inc.’s (“TSA”), motion for sanctions for destruction of electronic evidence. The court concluded that OSF deleted approximately 70,000 files and moved several email folders to the recycling bin despite a duty to preserve relevant evidence. Read the entire post at ediscoverylaw.com.
Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009)
In this defamation case, plaintiff/appellee Brodie sought to enforce a subpoena to compel the production of the identities of several persons who posted allegedly defamatory statements about the plaintiff, anonymously, on defendant/appellant Independent Newspaper’s (“Independent”) Internet forum. The circuit court granted Brodie’s motion and ordered Independent to identify the anonymous forum participants. Independent appealed. Finding that the circuit court abused its discretion when it denied Independent’s motion for a protective order because “Brodie had not pleaded a valid defamation claim against any of [the anonymous forum participants],” the appellate court vacated the prior judgment and remanded the case with instructions to grant defendant’s motion for a protective order and quash the subpoena. Read the entire post at ediscoverylaw.com.
I get "letters to the editor" pretty often, but since no one but me wants to read the many nice things people offer, I feel obliged to share just critical comments or those that proffer a correction. In the critical comments department, I had the novel experience of hearing from a lawyer-paralegal in the law firm for one of the parties in the Mintel v. Neerghen case. Thankfully, Mr. Michael Castellaneta's excoriation doesn't go quite so far as to question whether my mother and father were lawfully wed at the time of my conception. But, save for the incongruous "Kindest Regards" at the close, he pulls no punches in his assessment of my post on U.S. Magistrate Judge Valdez' Memorandum Opinion and Order in Mintel v. Neerghen. It's a comment to the related post below, along with my response.
Brookdale Univ. Hosp. & Med. Ctr., Inc., 2009 WL 393644 (E.D.N.Y. Feb. 13, 2009)
In this case, the court was asked to reconsider its prior order compelling defendants to return privileged documents inadvertently produced by the plaintiff. The court declined to overturn its ruling regarding documents specifically identified by the plaintiff as inadvertently produced and addressed by the court’s prior order. However, as to documents not identified at the time of the order, the court declared any privilege waived. Read the entire post here.
There's a new decision out of the N.D. of Illinois addressing the question of what justifies direct access to a non-party's hard drives in the context of employee data theft. IMHO, the Court reached the correct outcome when it denied such access, but it's a frustrating opinion because the tenacious movant appears to have become so fixated on obtaining drive images that it ignored simpler, less-invasive ways to answer what should have been the critical question, i.e., did the competitor get hold of and use stolen data?
I have some thoughts about how this should have come down.
The case is styled, Mintel Int’l Group, Ltd. v. Neerghen, 2009 WL 249227 (N.D. Ill. Feb. 3, 2009), and once again a tip of the hat goes out to the excellent Ediscoverylaw.com website for flagging and hosting the opinion.
SEC v. Badian, 2009 WL 222783 (S.D.N.Y Jan. 26, 2009)
In this case, Rhino Investors, Inc. (“Rhino”), a non-party, sought to claw back approximately 260 documents that it claimed were inadvertently produced in 2003 in the midst of an SEC investigation. The court, applying the four factors set forth in Louis Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and its progeny, concluded that Rhino had waived any privilege it may have asserted. Read the complete story here.
Gladys Kravitz was the neighbor in the 60s TV show Bewitched who was always spying on Samanta. She is the archetypal snoopy neighbor, one on a witch-hunt at that. When you have people like that in your company, especially in your IT department, watch out. They could be reading your email and saving copies of any juicy stuff they find to use against you later. They may even save it to turn over to the prosecutors someday to save themselves. This can happen to you, even if you own the company, or perhaps I should say, especially if you own the company or are a top officer. Just ask Henry Nicholas, the co-founder and ex-CEO of Broadcom, who had his email read by an IT guy. Now that email is prosecution Exhibit "A", just waiting for him to testify at trial. This is all described in U.S. v. Nicholas, __F.Supp.2d__, 2008 WL 5546721 (C.D.Cal., Dec. 29, 2008), and the latest e-Discovery Team blog, IT Workers Read Your Personal Email and U.S. Law is Generally OK with That.
U.S. v. Nicholas, 2008 WL 5546721 (C.D. Cal. Dec. 29, 2008)
In this case, the United States District Court in the Central District of California denied defendant Henry Nicholas’s motion to block the production of an incriminating email and for an order preventing the use of the email for cross examination or impeachment should Nicholas testify. Rejecting Nicholas’s argument that the email was protected from disclosure by marital privilege, the district court held that a Ninth Circuit ruling that the email was subject to some protection by the marital privilege did not preclude all potential use of the email. Accordingly the district court held that because the email could constitute the admission of a co-conspirator and be admissible at trial under other limited circumstances, it must be disclosed to Nicholas’s co-defendant. Read the rest here.
Appeals Court Requires Federal Agency to Spend 9% of Its Total Annual Budget to Comply with 3rd Party Subpoena of Electronic Records:
The United States Court of Appeals for the District of Columbia on January 6, 2009 issued an opinion affirming a contempt order against the Office of Federal Housing Enterprise Oversight (“OFHEO”). In re: Fannie Mae Securities Litigation 2009 U.S. App. LEXIS 9 (D.C. App. Jan. 6, 2009). The net result of the opinion is to affirm orders that required OFHEO to incur over $6 Million in expenses to respond to individual defendant discovery requests. The appeals court noted that this was more than 9% of the agency's entire annual budget, but did not seem too troubled by that. OFHEO was not even a party to the suit where they were required to bear this enormous burden. No wonder the government is going broke, just like many of the homeowners that Fannie Mae and OFHEO were supposed to protect.
How could such a thing happen you may well wonder? It is the usual answer. If you are a regular reader of the e-Discovery Team blog, you know what it is already.
Continue reading "Court: Fed Agency Must Spend $ to Comply" »
Over the next several weeks Arkfeld's E-Discovery Alert will focus on the strategy and tactics for handling sixteen specific ESI issues throughout pretrial discovery. Whether it is a "meet and confer" or request for production these are the critical issues to focus in requesting or producing ESI. The legal issue excerpts will be derived from the Best Practices Guide for ESI Pretrial Discovery - Strategy and Tactics (2008-2009). The Guide is cross-referenced and hyperlinked with the Arkfeld on Electronic Discovery and Evidence (2nd ed.) treatise and part of the CD-ROM.
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ISSUE: DOES RULE 34 SET FORTH MANDATES REGARDING THE “FORM OR FORMS” OF “ELECTRONICALLY STORED INFORMATION” FOR DISCLOSURE PURPOSES?
ANSWER: YES
Best Practices Guide for ESI Pretrial Discovery - Strategy and Tactics (2008-2009)
§ 3.10 RULE 34 AND FORM OF PRODUCTION
A. Overview
B. Kept in the Usual Course of Business or Labeled
C. Translated Into Reasonably Usable Form or Ordinarily Maintained
D. Procedure Determining Form(s) of ESI
E. Requesting Party Strategy
F. Producing Party Strategy
G. Checklist
A. Overview
During the early stages of electronic discovery, critical decisions have to be made as to the ESI form(s) that will be disclosed to, or received by a party. These decisions will impact, from that point forward, every aspect of the electronic discovery production and disclosure process. For example, they will determine whether the data is searchable and whether metadata is disclosed. They will also impact the cost of managing your litigation information. Failure to request or to disclose the proper ESI form(s) can have severe consequences. Read more . . .
Unfiltered Orange just tweeted about this post on Electronic Discovery Blog re: a producer sanctioned for failure to provide a 30(b)(6) witness where it failed to educate itself on its systems.
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