May 2012 – Electronic Discovery Law

Expert’s Inadvertent Production Results in Waiver of Privilege Absent Sufficient Supervision by Counsel or Prompt Steps to Rectify Disclosure

May 24 2012

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 1392965 (W.D.N.Y. Apr. 19, 2012)

In this case, the court addressed whether inadvertent production of an email by an information technology expert waived the attorney-client privilege. Finding that the plaintiff neither took reasonable steps to prevent the email’s disclosure nor acted promptly to rectify the error upon its discovery, the court held that privilege was waived.

Plaintiff claimed that the at-issue email was inadvertently produced by an information technology expert who was hired to recover a particular document from a computer at plaintiff’s counsel’s office and who was instructed to produce that document to the digital forensic consulting firm retained by the defendants. Specifically, plaintiff alleged that the expert mistakenly copied and produced (on CD) both the document he was instructed to recover and the privileged email to which it was attached. Interestingly, defendants’ consultant claimed never to have received the CD and instead explained that the email and the attachment were forwarded directly from plaintiff’s counsel’s email account, with a short note from the expert. Regardless of how the email was produced, approximately two weeks later, the recipient consulting firm disseminated the email in its native format to all parties to the action. More than two months later, plaintiff claimed that the email was inadvertently produced and requested it be returned or destroyed.

Da Silva Moore: Plaintiffs File Objections to Discovery Rulings

May 23 2012

On May 21, Plaintiffs filed Rule 72(a) objections to Magistrate Judge Peck’s May 7, 2012 discovery rulings related to the relevance of certain documents that comprise the seed set of the parties’ ESI protocol. Plaintiffs’ brief and supporting declaration are available below:

ABA Working Group Issues Interim Report on e-Discovery in Bankruptcy Cases

May 22 2012

In March, the American Bar Association’s Electronic Discovery [ESI] in Bankruptcy Working Group issued its Interim Report on Electronic Discovery Issues in Bankruptcy Cases. The Working Group “was formed to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve electronically stored information (ESI) in bankruptcy cases” and has prepared preliminary guidelines in three bankruptcy-related subject areas: “(i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases.” Those preliminary guidelines are appended to the Interim Report, which was issued to “invite and stimulate comments from a wider audience.” Thus, readers are encouraged to review the report, available here, and to submit comments to the Working Group using the contact information provided.

New Jersey Considers e-Discovery Rules for Criminal Cases

May 16 2012

In April 2009, Chief Justice Rabner of the Supreme Court of New Jersey appointed the Supreme Court Special Committee on Discovery in Criminal and Quasi-Criminal Matters (hereinafter the Committee). The Committee “was appointed to recommend solutions to a variety of issues that had arisen as the result of the increasing use of electronically stored information in criminal cases.” After significant investigation, the Committee has recently reported its recommendations, which include both proposed amendments to several rules as well as “non-rule recommendations.”

Issues identified for serious consideration by the Committee included many that are familiar to practitioners on the “civil side,” such as problems with incompatibility between the format of production and the equipment/software available to defense counsel, discovery related costs, and discovery-related delays as well as problems that are unique to criminal cases, including issues related to attorney-client visitation in county jails, for example. With so many issues to consider, the resulting report and recommendations are significant and too sweeping to succinctly summarize. For those who want to learn more, however, a copy of the full report is available here.

Additionally, for those who are interested, comments on the proposals are invited; the deadline for submission is June 4.

More Happenings in Da Silva Moore

May 16 2012

It seems every day brings something new in this case. Today we report that on Monday, May 14, Magistrate Judge Peck entered an order staying MSL’s production of ESI, “pending Judge Carter’s decision on plaintiffs’ motions for collective action certification and to amend their complaint.” That order is available here.

Also of interest, on Tuesday, May 15, Magistrate Judge Peck denied a motion from Richard E. Flamm, Esq. to file an amicus brief in support of plaintiffs’ Motion for Recusal or Disqualification. The motion, the underlying amicus brief, and the court’s order are available below:

Da Silva Moore: Plaintiffs File Reply in Support of Motion for Recusal or Disqualification

May 14 2012

On May 10, 2012, Plaintiffs filed their reply in support of their motion for recusal or disqualification. Those pleadings are available below.

• Reply Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification

• Declaration of Steven L. Wittels in Support of Plaintiffs’ Reply in Support of Plaintiffs’’ Motion for Recusal or Disqualification

E-Discovery Standards in Federal and State Courts after the 2006 Federal Amendments

May 13 2012

Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information. Thomas Allman, a recognized authority on electronic discovery, has given permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country. Our thanks to Mr. Allman for his analysis, and his gracious permission to post the article here.

To access the article, click here.

Thomas Y. Allman. The author, a retired General Counsel, is Chair Emeritus of Working Group 1 of the Sedona Conference,® a co-editor of the PLI Electronic Discovery Deskbook (2011) and serves as an Adjunct Professor at the University of Cincinnati College Of Law.

Twitter Seeks To Quash Order Requiring Production of Account Holder’s User Information, Tweets

May 09 2012

People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.)

Following up on the case summary from last week (posted May 1, 2012) in which the court denied defendant’s motion to quash the District Attorney’s subpoena and issued an order requiring the production of defendant’s user information and Tweets from Twitter, Inc., this week brings us Twitter, Inc.’s motion to quash the court’s order. Filed on May 7, 2012, the motion seeks to quash the court’s order on the grounds that the order imposes an undue burden on Twitter for reasons including that it requires them to violate the law.

From The Sedona Conference®: a Commentary on Ethics & Metadata

May 08 2012

In March, The Sedona Conference® released a public comment version of its latest publication: Commentary on Ethics & Metadata. The commentary is the first “to move beyond [Working Group 1’s] previously exclusive focus on aspects of discovery or records management/preservation” and focuses on ethical obligations surrounding metadata in both the discovery and non-discovery context.

The commentary is available for download from The Sedona Conference®, here.

N.D. California Court Declines to Follow Race Tires, Allows Taxation of e-Discovery Costs

May 02 2012

In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012)

Plaintiffs moved for review of the clerk’s taxation of costs, including those related to electronic discovery. Noting the recent decision of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp, which narrowly interpreted 28 U.S.C. § 1920(4) and which vacated a lower court’s approval of many costs related to electronic discovery, the California court nonetheless declined to disallow the costs related to electronic discovery in this case:

Archive - May 2012