March 2009 – Page 2 – Electronic Discovery Law

California Assembly Approves “Electronic Discovery Act,” Sends Bill to Senate

Mar 13 2009

On March 12, 2009 California’s Assembly took steps toward the legislature’s approval of proposed amendments to California’s Code of Civil Procedure to include rules governing the discovery of electronically stored information, by approving House Assembly Bill 5 and sending the bill to the Senate for its approval. The bill was then introduced in the Senate and has been sent to committee for hearings.

This is the second time California has considered such amendments. On September 27, 2008, the original bill was vetoed by Governor Arnold Schwarzenegger for budgetary reasons. House Assembly Bill 5 is virtually identical to the vetoed bill and was introduced to the Assembly by Assembly Member Noreen Evans on December 1, 2008.

To read the full text of Assembly Bill 5, click here.
To view the history of Assembly Bill 5, click here.

EU Article 29 Working Party Releases Working Document on Pre-Trial Discovery for Cross Border Civil Litigation

Mar 12 2009

On February 11, 2009, the EU Article 29 Working Party, set up under Article 29 of Directive 95/46/EC, released its working document addressing the difficulties of cross border discovery and providing guidance to EU data controllers on how to proceed.

Recognizing the “need for reconciling the requirements of US litigation rules and the EU data protection provisions,” the document is intended to provide guidelines for EU data controllers but also provides valuable insight to American practitioners regarding the difficulties they may face in cross border discovery, especially with European countries. As stated in its introduction:

There is a tension between the disclosure obligations under US litigation or regulatory rules and the application of the data protection requirements of the EU. There is also the issue of the contrast between the geographical and territorial basis of the EU data protection regime and the multinational nature of business where a corporate body can have subsidiaries or affiliates across the globe. This is of particular relevance to the European affiliates of multinational companies which can be caught between the conflicting demands of US legal proceeding and the EU data protection and privacy laws which govern the transfer of personal information.

Specifically, the document discusses the differences between Common Law and Civil Code jurisdictions, making requests for information through the Hague Convention, and relevant Articles of Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing personal data and on the free movement of such data (a/k/a The Data Protection Directive).

A full copy of the Working Document is available here.

Suspicious Timing of Destruction Results in Adverse Inference and Permission to Add a Claim of Exemplary Damages despite Lack of “Smoking Gun”

Mar 10 2009

Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D. Colo. Feb. 25, 2009)

Plaintiffs, as representatives of an estate, retained defendants, including broker Peter Seibert, to assist in selling a piece of the estate’s property. The property eventually sold, on defendants’ recommendation, for approximately $2.8 million. 83 days later, defendants assisted in reselling the property to a development company for $7.2 million. On March 19, 2006, plaintiffs’ counsel contacted defendants and informed them he was conducting an investigation into the sale. On November 2, 2006, plaintiffs filed suit alleging inter alia breach of statutory duties, negligence per se, negligent misrepresentation, and fraud.

Plaintiffs served discovery requests on April 9 and July 30, 2007. Included, were specific requests for electronically stored information (“ESI”) and for inspection and sampling of certain of defendants’ computers. Defendants’ responses indicated that they had searched three primary sources of potentially responsive ESI: Seibert’s old office computer, his home computer, and his laptop.

Court Addresses Tension between Defamation Victim’s Rights and First Amendment Protection of Anonymous Internet Speech, Provides Guidance on How to Proceed

Mar 06 2009

Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009)

Finding plaintiff/appellee failed to show a valid cause of action for defamation, the appellate court vacated an order requiring appellant to identify the alleged anonymous defamers and remanded the case for entry of an order granting appellant’s motion to quash.

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.

Documents Re-Organized and Stored are No Longer Maintained in “Usual Course of Business,” Offer of Inspection Inadequate Discovery Response

Mar 02 2009

Ak-Chin Indian Cmty. v. U.S., 85. Fed. Cl. 397 (Fed. Cl. Jan. 14, 2009)

Ak-Chin Indian Cmty. v. U.S., 2009 WL 320333 (Fed. Cl. Feb 5, 2009) (Denying Defendant’s Motion for Reconsideration but amending prior order in 85 Fed. Cl. 397 to delete certain findings of fact).

In this case, the court granted plaintiff’s motion to compel the defendant to organize and label its responses to plaintiff’s requests for production according to category, and to identify the specific documents from which responses to interrogatories could be derived.

Defendant responded to plaintiff’s discovery requests by making the requested information available for inspection. The information could allegedly be located by querying a database containing data about the contents of each box stored at a particular location. Plaintiff objected to defendant’s response and requested the information be organized and labeled according to the categories of its requests. Finding that the documents offered for inspection were not maintained “in the usual course of business” and thus defendant’s response did not comply with RCFC 34, the court ordered defendant to organize and label the documents as requested by plaintiff. The court also held that defendant had not met the requirements to properly rely upon RCFC 33(d) in responding to interrogatories where the rule allowed the production of business records as a response only where the burden of ascertaining the answer would be substantially the same for either party.

Archive - March 2009