2011 – Page 24 – Electronic Discovery Law

Upcoming Events – July 2011

Jul 08 2011

6th Annual Solo and Small Firm Conference (Sponsored by the Washington State Bar Association)

July 14-16, 2011
Ocean Shores Convention Center
Ocean Shores, WA

K&L Gates Staff Lawyer Beau Holt will present on the topic of “Ethics and Electronic Communication (Other than Social Media)” at 9:15 AM on Friday, July 15th. Topics to be addressed include ethical duties and technology habits; the web, the cloud, and metadata; and e-discovery and privilege in litigation.

To learn more, click here.

e-Discovery Case Law Update – Summer 2011 (presented by FIOS)

July 14, 2011
1-2 PM ET
Webcast

K&L Gates Partner Martha Dawson will participate in this quarterly case law update exploring recent decisions related to electronic discovery. Specifically, Martha will address the recent Rambus decisions issued by the Federal Circuit Court (summarized here) and the issue of spoliation sanctions. Other cases to be discussed during this presentation include Clean Harbors Envt. Servs. v. ESIS, Inc., (N.D. Ill. May 17, 2011), a case addressing recovery of e-discovery costs, and Steuben Foods, Inc. v. Country Gourmet Foods, LLC, (W.D.N.Y. Apr. 21, 2011), a case addressing issues surrounding the issuance of legal holds.

To learn more or to register, click here.

Connecticut Amends Rules Addressing Electronic Discovery, Effective 2012

Jul 07 2011

On June 20, 2011, the judges of the Superior Court adopted revisions to the Connecticut Practice Book, including many amendments addressing electronic discovery. Most amendments (including those addressing electronic discovery) will become effective on January 1, 2012. Although Connecticut’s rules previously addressed the issue of electronic discovery, the newest amendments provide substantially more instruction. Among the more notable amendments are the addition of Rule 13-5(9) allowing a court to issue a protective order which would allow for cost allocation and other remedies to avoid undue burden, etc. related to the discovery of electronically stored information; revisions to Rule 13-9(d) addressing the format of production; the addition of Rule 13-14(d) which closely, but not exactly, follows Federal Rule 37(f), and provides safe harbor for the loss of information resulting from routine, good faith operations of systems or processes “in the absence of a showing of intentional actions designed to avoid known preservation obligations”; and the addition of Rule 13-33 (Claim of Privilege or Protection After Production) which “provides a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery, and, if the claim is contested, permits any party that received that information to present the matter to the court for resolution.”

All of the amendments to Connecticut’s Practice Book are available here.

Court Reviews Plaintiff’s Facebook Account to Identify Material Subject to Discovery

Jul 01 2011

Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa. June 22, 2011)

In this case arising from a car accident which the plaintiff claimed resulted in physical and psychological injuries, the parties invited the court to conduct a review of Plaintiff’s social networking accounts “in order to determine whether certain information contained within Plaintiff’s accounts is properly subject to discovery.” Using Plaintiff’s log-in information, the court reviewed Plaintiff’s Facebook account, including “a thorough review of Plaintiff’s ‘Profile’ postings, photographs, and other information.” (Plaintiff’s MySpace account was not searched as it had not been accessed since November 2008 and Plaintiff could not locate the log-in information.) The court then identified potentially relevant information to be produced, including, for example, photos and updates indicating recent motorcycle trips and “photographs and comments suggesting that he may have recently ridden a mule.” In finding that some of the “public information contained in Plaintiff’s account is properly subject to limited discovery in this case,” the court noted Plaintiff’s acknowledgment that “limited [relevant] ‘public’ information is clearly discoverable under recent case law.”

San Diego County Bar Issues Ethical Opinion Addressing Friend Requests

Jun 28 2011

On May 24, 2011, the San Diego County Bar Association issued SDCBA Legal Ethics Opinion 2011-2, addressing the question of whether counsel may send a “friend request” to opposing parties. Following extensive analysis of the issue, the opinion concludes as follows:

Social Media sites have opened a broad highway on which users may post thier most private personal information. But Facebook, at least, enables its users to place limits on who may see that information. The rules of ethics impose limits on how attorneys may obtain information that is not publicly available, particularly from opposing parties who are represented by counsel.

We have concluded that those rules bar an attorney from making an ex parte friend request of a represented party. An attorney’s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party. We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request. Represented parties shouldn’t have “friends” like that and no one – represented or not, party or non-party – should be misled into accepting such friendship. In our view, this strikes the right balance between allowing unfettered access to what is public on the Internet about parties without intruding on the attorney-client relationship of opposing parties and surreptitiously circumventing the privacy even of those who are unrepresented.

A full copy of the opinion is available here.

Judge Scheindlin Withdraws Opinion in Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency

Jun 23 2011

Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 10 Civ. 3488 (SAS) (S.D.N.Y. June 17, 2011)

On February 7, 2011, Judge Scheindlin issued an opinion in which she concluded that “metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’” (See a summary of that opinion here.) The opinion also provided substantial guidance regarding the “minimum fields of metadata that should accompany any production of a significant collection of ESI." That opinion has now been withdrawn.

The text of the Order withdrawing the opinion is short, and is provided below:

This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit. In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41). I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record. By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).

A copy of the opinion is also available here.

Court Rejects Objection to Portion of Monetary Sanctions, Orders Payment of $571,440.12 by July 15

Jun 22 2011

Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662 (D. Md. June 15, 2011)

In another chapter of the Victor Stanley saga, the defendant objected to payment of the remaining balance of the monetary sanction ordered as a result of its spoliation of evidence (see Victor Stanley II). Specifically, the defendant had been ordered to pay a monetary sanction “equivalent to Plaintiff’s fees and costs ‘associated with all discovery that would not have been un[der]taken but for Defendant’s spoliation, as well as the briefings and hearing regarding Plaintiff’s Motion for Sanctions.’” The total award of sanctions amounted to $1,049,850.04. Defendant objected to payment of fees which it alleged were unrelated to its spoliation. The District Court disagreed and found that the recommended award was proper. Accordingly, defendant was ordered to pay the remaining balance of the sanction, $571,440.12, by July 15, 2011.

A copy of the order is available here.

Court Orders Monetary Sanctions Against Client and Counsel for Discovery Violations, Including Counsel’s Failure to Make “Reasonable Inquiry”

Jun 17 2011

Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011)

For discovery violations, including (among others) false certification that all relevant records were kept in paper format, delayed and inadequate production and failure to search for documents in a timely manner, and counsel’s failure to adequately familiarize himself with his client’s document retention practices or to assist in the production of documents, the court imposed monetary sanctions equal to the amount expended because of plaintiff’s discovery abuses, to be born by plaintiff and its counsel jointly and severally.

No Sanctions for Failure to Preserve Disaster Recovery Back-up Tapes where Other Preservation Efforts were Reasonable “In the Context of This Case”

Jun 13 2011

Gaalla v. Citizens Med. Ctr., No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011)

Plaintiffs moved for sanctions based on defendant’s failure to preserve its disaster recovery back-up tapes, which were overwritten every seven or fourteen days, even after the filing of this lawsuit. Further, “as the briefing developed,” plaintiffs “appeared to contend” that even absent a duty to preserve the disaster recovery back-up tapes themselves, “[defendant]’s failure to preserve the back-up tapes in conjunction with the failure to take timely ‘snapshots’… of relevant email accounts, and evidence that certain CMC employees had deleted emails from their account at some point in the past warrant[ed] severe sanctions.”

Court Grants Motion to Compel, Orders Forensic Imaging of Defendants’ Computers

Jun 09 2011

Weatherford U.S., L.P. v. Innis, No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011)

Plaintiff alleged that a former employee had downloaded its confidential information and used it to “jump start” his own competing company. Defendant Innis acknowledged that he had downloaded the information, but denied accessing or using it as plaintiff alleged. Forensic examination of the thumb drive containing the downloaded information contradicted his claims. Thereafter, plaintiff filed a motion to compel production of materials previously identified in a subpoena duces tecum and, “to minimize disruption to defendants’ operations and alleviate their concerns about the disclosure of privileged communications,” proposed that an expert of plaintiff’s choosing be allowed to image defendants’ computers at plaintiff’s expense, and that defendants be allowed to screen the imaged documents prior to their production. Citing Innis’s acknowledgment that he had copied plaintiff’s confidential information and evidence that he had accessed it thereafter, the court granted plaintiff’s motion to compel.

For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived

Jun 02 2011

DL v. District of Columbia, No. 05-1437 (RCL), 2011 WL 1770468 (D.D.C. May 9, 2011)

Upon learning that the District intended to produce email on a rolling basis even after trial had concluded despite two prior court orders compelling production, the court held that the District had waived all objections, including privileges, and ordered production within one week of the close of trial. Defendants moved for reconsideration. Likening the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes,” the court denied the motion.

Archive - 2011