2008 – Page 35 – Electronic Discovery Law

White House Responds to Questions Posed by Magistrate Judge John M. Facciola Regarding Backup Media and Email

Jan 17 2008

Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 15, 2008)

On January 15, 2008, a declaration authored by the White House’s Chief Information Officer was filed in response to the Court’s January 8 Order, discussed in our January 10, 2008 post on the subject. The declaration responds to four questions posed by Magistrate Judge John M. Facciola regarding the backup media being preserved by the White House for purposes of the litigation. Among other things, the CIO confirms that emails sent or received during the 2003-2005 time frame should be contained on existing backup tapes. However, the CIO states that her office “does not know if any emails were not properly preserved in the archiving process.”

The CIO further states that her office is undertaking an “independent effort” to determine whether there may be “anomalies” in Exchange email accounts for any particular days resulting from the potential failure to properly archive emails for the 2003-2005 time period. The CIO states that this “independent assessment” is expected to be completed in the near term.

Click to view a Washington Post article on this most recent filing and for additional background.

California Judicial Council Seeks Public Comment on Proposed E-Discovery Amendments

Jan 16 2008

To modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information, the Judicial Council of California has proposed amending California’s Civil Discovery Act and two rules in the California Rules of Court on the management of civil cases.

The proposal has two parts. First, it would amend the Civil Discovery Act (Code Civ. Proc., §§ 2016.010 et seq.) to include new provisions relating to electronic discovery and would add two new sections relating to electronic discovery to the act. Second, the proposal would amend two case management rules in the California Rules of Court (rules 3.724 and 3.728) to encourage parties to identify and discuss issues relating to electronic discovery early in the course of litigation and to encourage courts to address these issues in case management orders. These rule amendments are closely connected with, and are intended to assist in implementing, the proposed legislation. The rule proposals would not go forward without the legislation.

Click to view the full proposal and invitation to comment: Electronic Discovery: Legislation and Rules

The deadline for comments is Friday, January 25, 2008. Comments may be submitted through the Judicial Council’s online comment form, or by regular mail to the following address:

Arkansas Supreme Court Approves Amendments to Evidence Rule 502 and Civil Procedure Rule 26(b)(5) to Address Inadvertent Disclosure of Privileged Information or Work Product

Jan 11 2008

On January 10, 2008, the Arkansas Supreme Court accepted the Committee on Civil Practice’s proposals for changes in the Arkansas Rules of Civil Procedure and Rules of Evidence to address the inadvertent disclosure of information protected by the attorney-client privilege, or any other evidentiary privilege, or the work product doctrine. The amendments go into effect immediately.

The Reporter’s Notes explain the rationale behind the amendments:

Lawyers do their best to avoid mistakes, but they sometimes happen. Discovery has always posed the risk of the inadvertent production of privileged or protected material. The advent of electronic discovery has only increased the risk of inadvertent disclosures. This amendment addresses this risk by creating a procedure to evaluate and address inadvertent disclosures, including disputed ones.

Click to view the Arkansas Supreme Court Order approving the amendments, which sets out the full text of the amendments and the accompanying Reporter’s Notes.

Microsoft E-Discovery Summits

Jan 11 2008

Please join us for in-depth information and discussion about the legal impact of recent amendments to the Federal Rules of Civil Procedure.

Hosted by Microsoft and featuring speakers from K&L Gates, these summits will help equip your company to comply with evolving federal e-discovery requirements and help avoid costly penalties.

To register, or to find out more information about this conference series, please click here.

Seattle Event:
January 29, 10:00AM -1:30PM: Martha J. Dawson
W Hotel Seattle
1112 4th Avenue
Seattle WA, 98101

Detroit Event:
January 30, 9:00AM-1:00PM: Thomas J. Smith
Microsoft Corporation – Southfield Office
1000 Town Center, Suite 2000
Southfield, MI 48075

San Francisco Event:
January 31, 8:30AM-11:00AM: Helen Bergman Moure
Microsoft Corporation – San Francisco Office
835 Market Street, Suite 700
San Francisco, CA 94103

Court Orders White House to Provide Additional Information About Backup Media Being Preserved

Jan 10 2008

Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 8, 2008)

This case involves a claim by the National Security Archive (“the Archive”) and Citizens for Responsibility & Ethics in Washington that several million email messages were improperly deleted from White House computer servers. Plaintiffs have requested that the court compel expedited discovery and a Rule 26(f) conference, and defendants have moved to dismiss the case. On Tuesday, January 8, 2008, Magistrate Judge John M. Facciola ordered the White House to provide additional information about the backup media it is preserving in the litigation pursuant to an earlier court order. The court explained the relevance of the information to its decision on plaintiffs’ pending discovery motion:

To the extent that the missing emails are contained on the back-ups preserved pursuant to Judge Kennedy’s order, there is simply no convincing reason to expedite discovery – particularly where, as here, there is a pending motion to dismiss. If the missing emails are not on those back-ups, however, the relief likely to be requested by the Archive will be beyond the scope of the present Motion – and, indeed, beyond the scope of this referral. The request for that relief will also be time-sensitive: emails that might now be retrievable from email account folders or “slack space” on individual workstations are increasingly likely to be deleted or overwritten with the passage of time.

Court Sanctions Qualcomm $8,568,633, Orders Certain In-House and Former Outside Counsel to Participate in “Case Review and Enforcement of Discovery Obligations” Program, and Refers Investigation of Possible Ethical Violations to California State Bar

Jan 08 2008

Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

On Monday, January 7, 2008, United States Magistrate Judge Barbara L. Major issued her Order on Broadcom’s Motion for Sanctions related to Qualcomm’s failure to produce tens of thousands of documents that Broadcom had requested in discovery. (A copy of the January 7 order downloaded from Westlaw is available here.) Additional background regarding the sanctions motion is available in our previous posts on the case on September 20, 2007, August 29, 2007 and August 13, 2007.

In this most recent order, the judge ordered Qualcomm to pay Broadcom $8,568,633.24 for its “monumental and intentional discovery violation,” representing all of Broadcom’s attorneys’ fees and costs incurred in the litigation. (Because the trial judge had already awarded these costs and fees to Broadcom in its Exceptional Case Order, the court directed that Qualcomm receive credit toward this penalty for any money it paid to Broadcom to satisfy the exceptional case award.)

The court also found that six of Qualcomm’s outside attorneys “assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate.” The court observed that these six attorneys “then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.” As such, the court found that the attorneys had violated their discovery obligations and also may have violated their ethical duties. Accordingly, the court concluded that sanctions against the six named outside attorneys were also warranted.

The Computer Forensics Show

Jan 07 2008

Washington Convention Center
801 Mt. Vernon Place NW
Washington, DC 20001

February 4-6, 2008

K&L Gates partner David E. Cohen will be presenting the opening day keynote address at this inaugural computer forensics event. David’s presentation, entitled "A Litigation ‘Perfect Storm’: Why Data Proliferation and E-Discovery are Battering U.S. Businesses,” will begin at 6 p.m. on Monday, February 4, 2008.

The Computer Forensics Show is described as the “Don’t Miss!” event of the year for all litigation, accounting and IT professionals. There will be multiple tracks of sessions offered each day, specifically geared towards the different audiences who will be attending, i.e., “Legal Track,” “Accounting Track,” “IT Security Track,” “IT Security (Advanced) Track,” and “Lab Track.”

Click here for more information about the event, or to register.

Texas Appellate Court Upholds Discovery Order Requiring Party to Allow Opposing Party’s Expert to Create Mirror Images of Office Computer Hard Drives

Jan 07 2008

In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Defendants in underlying real estate litigation sought a writ of mandamus compelling the trial court to set aside a discovery order that required them to permit a forensic expert to create a mirror image of each of the computer hard drives in their office in an effort to locate two particular documents or iterations of those documents. The documents were two drafts of a partial assignment of a real estate contract, and served as the basis for the underlying suit. Plaintiff A & W Development, LLC had sought the metadata because it wanted to identify the points in time when the partial assignment draft was modified in relation to a particular diary entry. The evidence related to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement.

The Honzas contended that the court abused its discretion because: (1) the discovery order was overbroad and authorized an improper "fishing expedition"; (2) the order authorized the disclosure of information protected by the attorney-client privilege; and (3) the order authorized the disclosure of confidential information pertaining to the Honzas’ other clients who had no connection to the underlying lawsuit.

The appellate court denied the petition for writ of mandamus, finding that the order was not overbroad and was appropriately tailored to prohibit the unauthorized disclosure of privileged or confidential information. In reaching its decision, the appellate court noted that there was no Texas authority directly on point, and described the relevant state and federal decisions:

County’s “Foot Dragging” in Discovery and Failure to Implement Legal Hold Warrant Monetary Sanctions, but not Default Judgment or Adverse Inference Instruction

Jan 03 2008

Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007)

In this case, plaintiffs alleged that their civil rights had been violated when the defendants denied them the opportunity to purchase real estate at auction. The email dispute was first brought to the court’s attention in August 2006, when the plaintiffs moved to compel supplemental discovery responses from the County. Plaintiffs’ counsel argued that the County had failed to perform a diligent search for responsive documents, evidenced by the fact that it had only produced two emails. During a conference with the court on the matter, counsel for the County suggested that since it was "more the exception than the rule," that employees were "communicating be email," a further search was unlikely to uncover additional emails. However, because it became clear that the County had failed to conduct a system wide search for responsive emails, the court directed the County to have its Information Technology Department search the County’s servers for responsive emails.

In October 2006, plaintiffs moved for sanctions, contending that the County had willfully failed to comply with the court’s order. In response, the County submitted an affidavit from its Director of Management Information Services, explaining that the County lacked the resources to perform the court-ordered search for additional emails. He estimated that the cost to restore the County’s backed up data would be roughly $36,000, and that the process would take as much as 1,700 man hours.

Archive - 2008