December 2012 – Electronic Discovery Law

New Illinois Rules Address Inadvertent Disclosure

Dec 21 2012

On November 28, 2012, the Supreme Court of Illinois entered an order adopting new Rule of Evidence 502 Attorney Client Privilege and Work Product; Limitations on Waiver and a second order amending Rule 201 General Discovery Provisions. The newly adopted rules address the inadvertent disclosure of privileged information and closely follow the Federal Rules addressing the same (FRE 502 & FRCP 26(b)(5)(B)). The rules will be effective January 1, 2013.

A copy of the order adopting new Rule 502 is available here.

A copy of the order adopting the amendment to Rule 201 (and others) is available here.

The Sedona Conference® Publishes Primer on Social Media (Public Comment Version)

Dec 17 2012

This month, the Sedona Conference® published a public comment version of its latest paper, The Sedona Conference® Primer on Social Media. The primer, a somewhat different publication than prior commentaries, is described in its Preface as follows:

Unlike many of previous publications in this series, this is not entitled a “Commentary,” nor does it present any formal “Principles,” although it contains plenty of practical guidance for attorneys, judges, and parties. This is called a “Primer” because the goal is to provide primary instruction to the bar and bench in the basics of social media and the law, from definitions, to the use of social media in business, to the discovery of social media in litigation, to professional responsibilities lawyers have in relation to their own use of social media. This is a fast-developing and fast-changing area of technical, social, and legal development, and any consensus-based Commentary or set of Principles that claims to advance the law in this area may be doomed to obsolescence as soon as it is announced on Twitter. However, we hope that this Primer represents a positive first step in grounding the dialogue leading to consensus on moving the law forward in the reasoned and just way.

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

Court Addresses What Constitutes “Bad Faith,” Imposes Adverse Inference & Monetary Sanctions

Dec 14 2012

Bozic v. City of Washington, No. 2:11-cv-674, 2012 WL 6050610 (W.D. Pa. Dec. 5, 2012)

Addressing Plaintiff’s accusation of spoliation based on the destruction of the contents of an audio tape, the court considered “the requisite mental state or level of scienter” necessary to establish bad faith, as is required in the Third Circuit, and found that the circumstances surrounding the destruction established sufficient culpability, that it was “highly likely” that Plaintiff was materially prejudiced, and that “no lesser sanction than at least a spoliation adverse inference would avoid substantial unfairness” and ordered an adverse inference and monetary sanctions.

New Jersey Addresses Discovery of ESI in Amendments to Rules Governing Criminal Practice and Rules Governing Practice in the Municipal Courts

Dec 11 2012

On December 4, 2012, the New Jersey Supreme Court adopted amendments to the New Jersey Rules Governing Criminal Practice and to the Rules Governing Practice in the Municipal Courts. The amendments were initially recommended by the Supreme Court Special Committee on Discovery in Criminal and Quasi-Criminal Matters. The amendments are effective on January 1, 2013.

Among other things, the amendments to the Rules of Criminal Practice address a newly imposed obligation to meet and confer on the issue of electronic discovery (Rule 3:9-1(b)); the discoverability of electronically stored information generally (e.g., by specifically identifying such information as discoverable under the rules), including the format of production (Rule 3:13-3); and discovery fees (Rule 3:13-5). Similarly, the amendments to the Rules of Practice in the Municipal Courts address (among other things) the discoverability of electronically stored information generally, including the format of production and discovery fees (Rule 7:7-7).

For a copy of the Notice to the Bar, including the Court’s Order, click here.

MGA Entm?t, Inc. v. Nat?l Prods. Ltd., No. CV 10-07083 JAK (SSx), 2012 WL 12886446 (C.D. Cal. Jan. 26, 2012)

Dec 01 2012

Key Insight: Plaintiffs sought to compel production of responsive documents relating to Defendant?s sale of products carrying the Little Tikes brand. Defendant had attached documents to its opposition motion that it had not previously produced to Plaintiff, which prompted the current motion. Plaintiffs requested that Defendant ?identify all custodians of documents referring or relating to Defendant?s sale? and conduct a ?forensic analysis of all Defendants? document custodians? to locate responsive documents. The court denied Plaintiff?s request for a forensic analysis, noting ?that the motion is based only on speculation and lacks conclusive proof that responsive documents are actually being withheld.? However the court found that Defendant?s ESI searching ?may have been inadequate? and were performed ?without guidance or supervision from an attorney on how to conduct a search.? The court ordered a meet and confer to identify custodians and agree on search terms, the Defendant must then perform the searches of ESI on Defendants’ computers/systems (supervised by an attorney who must then submit a declaration) and produce responsive documents.

Electronic Data Involved: ESI

Mailhoit v. Home Depot USA, No. CV 11-03892 DOC (SSx), 2012 WL 12884128 (C.D. Cal. Aug. 29, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s Motion for an order precluding discovery of disaster recovery backup tapes, court considered the factors laid out in Rule 26(b)(2)(B)?s Committee Note (2006) and relevant case law and concluded that Defendant met its burden to establish inaccessibility where restoration and production would be ?extraordinarily expensive, both in restoration costs and attorney time? and that Plaintiff failed to establish good cause to compel production, citing as most important the failure to substantiate the claim that the emails would be important or useful to her case; court rejected argument that sampling must be conducted before a cost-benefit analysis could be undertaken by the court

Electronic Data Involved: Disaster Recovery Backup Tapes

MC Asset Recovery LLC v. Castex Energy, Inc., NO. 4:07-CV-076-Y, 2012 WL 12919263 (N.D. Tex. April 26, 2012)

Dec 01 2012

Key Insight: Court acknowledged that the parties could have communicated better to resolve the issue, but granted Plaintiff?s motion to compel re-production of ESI in .tiff format with a summation load file (including metadata) where Plaintiff indicated issues with Defendant?s production but where Defendant failed to timely follow up and then voluntarily re-produced ESI but not in a format that included metadata; the court also noted the strong showing that the metadata would be useful in the case and Plaintiff?s willingness to substantially narrow the number of documents sought, thus reducing the burden of production

Electronic Data Involved: ESI with metadata

Lechase Constr. Servs. LLC v. Info. Advantage, Inc., NO. 2011/7765, 2012 WL 12294457 (N.Y. Sup. Ct. Oct. 4, 2012)

Dec 01 2012

Key Insight: Court granted Plaintiff?s request for an order approving the use of key words to locate responsive documents and instructed that if Plaintiff and/or its counsel was capable of searching both email and attachments, they may proceed with ?self-collection? but that if they could not, a vendor would be required to run the searches; court encouraged cooperation in determining keywords to be utilized

Electronic Data Involved: ESI

Blythe v. Bell, No. 11 CVS 933, 2012 WL 3061862 (N.C. Sup. Ct. July 26, 2012)

Dec 01 2012

Key Insight: Where defendants hired an inexperienced vendor/consultant to identify potentially responsive ESI using search terms provided by plaintiffs and produced 3.5 million documents (which included privileged information) without further review save the attempted removal of documents containing the ?hickorylaw.com? extension (which proved unsuccessful), the court acknowledged a five-factor test to analyze the question of waiver, indicated the question of whether reasonable precautions were taken was controlling, and found that privilege had been waived where defendants’ efforts to guard against waiver were insufficient, particularly in light of the high volume of ESI which should have prompted more diligent efforts; court considered whether waiver was appropriate where defendants sought assistance from an outside consultant but found that counsel?s supervision of that consultant was insufficient: ?But, the court also concludes that efforts by a consultant demand a degree of oversight that is absent here.?

Electronic Data Involved: ESI

Pacificorp v. N.W. Pipeline GP, No. 3:10-cv-00099-PK, 2012 WL 6131558 (D. Or. Dec. 10, 2012)

Dec 01 2012

Key Insight: Addressing issue of taxable costs related to electronic discovery, court allowed recovery of costs related to ?converting already selected files into a database,? bates stamping, conversion to searchable PDF, and storage of electronic data but denied recovery as to collecting documents and culling them for responsiveness

Electronic Data Involved: Taxable costs related to ESI

Archive - December 2012