March 2009 – Electronic Discovery Law

Vendor’s Mistake Results in Inadvertent Production, Court finds No Waiver

Mar 30 2009

Heriot v. Byrne, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009)

In this declaratory judgment action, the parties sought to settle the issue of copyright ownership over a made-for-television movie called The Secret. In the course of discovery, due to a mistake by their “document vendor,” plaintiffs inadvertently produced privileged information. Upon discovery of the inadvertent production, plaintiffs immediately sought to claw back the privileged material. Defendants resisted, arguing that privilege was waived. Undertaking an extensive analysis of recently passed FRE 502 and the previously existing tests to determine waiver, the court ruled in favor of plaintiffs and ordered any remaining copies of plaintiffs’ privileged documents in defendants’ possession returned or destroyed.

Court Grants Plaintiff’s Motion to Compel Re-Production of Particular ESI in Light of Discrepancies between Emails and Attachments, Orders Parties to Confer Regarding Request for Access to Hard Drives

Mar 27 2009

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. Mar. 18, 2009)

In this wrongful termination case, plaintiff discovered discrepancies between certain relevant emails’ sent dates and the creation dates of their attachments. These discrepancies, plaintiff contended, were relevant to the issue of when the decision to terminate her employment was made. Without additional information, however, plaintiff’s forensic expert could not come to a conclusion regarding the meaning of the discrepancies. Accordingly, plaintiff sought the re-production of the emails, in native format, and their attachments from the Outlook accounts of both the sender and the recipient of each email. Plaintiff also sought the production of the relevant PST and OST files and access to the hard drives used to create any of the emails’ attachments. Plaintiff’s motion was granted in part and denied in part.

Finding Defendants’ Summaries an Insufficient Discovery Response, Court Grants Motion to Compel and Authorizes Plaintiff to Submit Proposed Hard Drive Inspection Protocol for Court’s Consideration

Mar 25 2009

Anthropologie, Inc. v. Forever 21, Inc., 2009 WL 690239 (S.D.N.Y. Mar. 13, 2009)

In this copyright infringement case, defendants refused to properly respond to discovery and instead provided summaries of the requested information designated “for settlement purposes only.” Finding these responses inadequate, and noting defendants numerous misrepresentations to the court, the court granted plaintiff’s motion to compel the production of the data underlying the proffered summaries and for all information responsive to plaintiff’s requests. However, despite finding inspection of defendants’ hard drives justified, the court declined to order such access where plaintiff had failed to provide any specifics of its proposal and where the court sought to avoid additional delay and expense. Accordingly, upon receipt of defendants’ ordered production, if it still wished, plaintiff was authorized to submit a proposed inspection process and further explanation of its need for access for consideration by the court.

Court Declines to “Overturn the Well-Settled Rule in New York” that the Party Seeking Discovery Bears the Cost

Mar 24 2009

T.A. Ahern Contractors Corp. v. Dormitory Auth. of State of N.Y., 875 N.Y.S.2d 862 (N.Y. Sup. Ct. 2009)

In this breach of contract action, both parties sought to compel the production of requested discovery. Specifically, plaintiff sought to compel production of defendant’s project-related emails. Defendant did not object to such production but, because of technological limitations, indicated the need to hire an outside vendor to assist in the production at an estimated cost of $35,000. Defendant indicated it would begin the process of production, including hiring the vendor, upon plaintiff’s confirmation that it would bear the production costs. Plaintiff took the position that defendant should bear the costs. The court agreed with defendant and, citing the “well-settled rule in New York that the party seeking discovery bear the cost incurred in its production,” ordered plaintiff to bear the cost of defendant’s production. Defendant was likewise ordered to bear plaintiff’s production costs.

Court’s Opinion a “Wake-Up Call” About the Need for Careful Deliberation and Cooperation in Crafting Search Terms

Mar 24 2009

William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)

This case arose from disputes over alleged defects and delay in the construction of the Bronx County Hall of Justice. In the course of litigation, The Dormitory Authority of New York (“DASNY”) agreed to produce the relevant documents of the non-party construction manager, Hill International (“Hill”). Disagreement arose amongst the parties, however, regarding appropriate search terms to segregate project related emails from Hill’s unrelated emails. Hill, despite being in the best position to contribute, suggested no potential search terms and the court was forced into the “uncomfortable position” of crafting a search without adequate information.

Having been put in such a position, the court took its opportunity to write a brief opinion addressing the need for care and collaboration in crafting search terms in light of its assessment that “the message has not gotten through.” First, the court presented an excerpt from an opinion of Magistrate Judge Paul Grimm, regarding the proper selection and implementation of terms:

K&L Gates Obtains Ruling Denying Defendant’s Motion for Contempt Against Plaintiff’s Technical Consultant, and Court Grants Plaintiff’s Motion for Sanctions for Deletion of Data during Pendency of Litigation

Mar 20 2009

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.

In July 2007, TSA sought the production of all emails between certain specified persons for the purpose of obtaining a particular email alleged by TSA to exist on OSF’s information system and, specifically, in the e-mailbox of OSF employee Patrick Billups. Notwithstanding numerous targeted requests for the e-mail, OSF did not produce it.

Court Finds Failure to Implement Litigation Hold Gross Negligence but Declines to Order Adverse Inference where Plaintiffs Failed to Establish Relevance of the Information Destroyed

Mar 20 2009

ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009)

In this case, plaintiffs moved for an adverse inference instruction alleging that Nassau County failed to timely implement a litigation hold which resulted in the destruction of potentially relevant documents and that it failed to adequately search for potentially responsive electronically stored information (“ESI”). Finding that plaintiffs did not sufficiently demonstrate that any lost materials would have been favorable to them, the court denied the motion. However, upon the court’s finding that the County’s failure to implement a timely litigation hold amounted to gross negligence, the court awarded plaintiffs their costs and attorney’s fees. Regarding the County’s failure to search for relevant ESI, the court declined to award sanctions in light of the County’s assertions that manual searches were undertaken, but ordered the County to confirm that their responses were complete.

State has Obligation to Provide Defendants “Meaningful Access” to Copies of Seized Hard Drives

Mar 18 2009

State v. Dingman, 202 P.3d 388 (Wash. App. 2009)

On appeal from his conviction for first degree theft and money laundering, Dingman argued that the trial court erred when it denied his repeated discovery requests for meaningful access to the hard drives seized from his house. The appellate court agreed, and the case was reversed and remanded for a new trial.

On March 19, 2003, officers searched Dingman’s house and seized nine computers. A detective then created mirror image copies of those computers using a program called EnCase. Eventually, Dingman was charged with numerous counts of first degree theft and money laundering.

On January 1, 2004 the State provided Dingman with discovery, including a report containing information about the mirror images copies of his computers taken with EnCase. In August of 2005, Dingman moved for additional discovery, requesting direct access to the computer hard drives or mirror image copies “created in a program used by the defendant’s computer expert.”

American College of Trial Lawyers Releases Final Report Addressing Discovery and Issues Impacting Discovery, Encourages Public Comment and Debate

Mar 16 2009

On March 11, 2009, the American College of Trial Lawyers released its report on discovery and issues impacting discovery. The report is the final product of a joint project between members of the American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System. The project was “conceived as an outgrowth of increasing concerns that problems in the civil justice system, especially those relating to discovery, have resulted in unacceptable delays and prohibitive expense.” The goal of project was to provide Proposed Principles that would “ultimately result in a civil justice system that better serves the needs of its users.”

The Final Report identifies problems in several areas including pleadings, discovery, experts, and dispositive motions and provides Proposed Principles intended to address and resolve those problems. The report’s discussion of discovery includes several Proposed Principles directly addressing the perceived problems in electronic discovery. Among those Proposed Principles are:

Court Imposes Sanctions on Plaintiff and Counsel, Orders Plaintiff to Provide Access to Database and for Attorney and his Law Firm to Pay Defendant’s Costs, Fees, and Expenses

Mar 16 2009

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009)

This case arises from an insurance dispute following damage to Bray & Gillespie’s (“B&G”) resort properties from Hurricanes Charley, Frances, and Jeanne. B&G was represented by Anderson, Kill & Olick, P.C. (“AKO”) in connection with the submission of insurance claims for the damage. B&G, with the assistance of AKO, gathered documents, including electronically stored information (“ESI”) to support those claims. Relevant ESI was downloaded in its native format, scanned, and loaded to a hard drive (“Target Hard Drive”). The ESI was then converted to TIFF images using a program called Extractiva, which also captured the metadata from the ESI. Those images and metadata were then uploaded into the Introspect database and the Target Hard Drive was put in storage. AKO provided copies of the information to Lexington, in paper form and on discs, in support of B&G’s insurance claims. Coverage could not be agreed upon, and on February 13, 2007, B&G filed suit.

Archive - March 2009