2015 – Page 16 – Electronic Discovery Law

It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery

Aug 06 2015

Formal Opinion No. 2015-193 addresses the question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?”

The opinion summarizes the answer as follows:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

To read the full opinion, click here.

For Reliance on Employees’ Self-Selection and Failure to Cooperate, Defendant Ordered to Produce Corporate Designee to Explain Retention Policies, Discovery Methods

Aug 04 2015

Burd v. Ford Motor Co., No. 3:13-cv-20976, 2015 WL 4137915 (S.D. W. Va. July 8, 2015)

In this case, Defendant sought to quash Plaintiffs’ notice of deposition and entry of a protective order precluding Plaintiffs from deposing Defendant’s representative regarding Defendant’s document retention policies and practices and specific methodologies for identifying relevant information in the present case, including Defendant’s admitted reliance on custodian “self-selection.” Citing Plaintiffs’ concerns regarding the sufficiency of Defendant’s discovery efforts and Defendant’s refusal to cooperate and/or to disclose the search terms utilized by its custodians in their search efforts, the court denied Defendant’s requests for protection and ordered the defendant to produce a Rule 30(b)(6) witness to testify regarding “its document retention and destruction polices, and to supply details regarding the document search performed by [Defendant] to date.”

In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations

Jul 28 2015

Presenters: Desiree F. Moore, Daniel R. Miller, Ivan L. Ascott, & Bree Kelly

On July 16, 2015, a panel of attorneys from K&L Gates presented a webinar discussion addressing the discoverability and admissibility of social media content. Topics discussed included:

the discoverability standards applied by courts with regard to social media content;
the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards;
the relevance of the federal Stored Communications Act to discovery of information on social media;
the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and
the considerations pertinent to admission of social media content as evidence.

To download the presentation slides or to view and listen to the webinar, click here.

Noting Reliance Solely on Cost of Discovery, Court Rejects Proportionality Objection

Jul 21 2015

Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ, 2015 WL 3937410 (D. Kan. June 26, 2015)

In this case the court addressed Defendants’ motion to compel and Plaintiff’s objection to discovery based on proportionality. Concluding that Plaintiff failed to adequately establish the alleged burden of the requested discovery, the court granted the motion to compel.

Satellite Image Labeled with Automatically Generated “Tack” and GPS Coordinates Not Hearsay

Jul 02 2015

United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)

“Are a Google Earth satellite image and a digital ‘tack’ labeled with GPS coordinates hearsay?” In this case, the Ninth Circuit answered “no.”

Upcoming Event: Discovery of Social Media: Legal and Practical Considerations

Jun 23 2015

Please join us for an in-depth discussion of issues related to the discoverability and admissibility of social media content.

Thursday
July 16, 2015
12:00 – 1:30 p.m. EDT
Program will be 90 minutes, followed by time for Q&A

Our panel of K&L Gates lawyers will cover topics including: the discoverability standards applied by courts with regard to social media content; the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards; the relevance of the federal Stored Communications Act to discovery of information on social media; the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and the considerations pertinent to admission of social media content as evidence.

CLICK HERE to register.

Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment

Jun 19 2015

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants “spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith” and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife “left it to her agent—her husband—to respond to Plaintiff’s document requests.”

Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format

Jun 10 2015

United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015)

In this case, the court addressed Plaintiffs’ demands that Defendants restore ESI contained on disaster recovery backup tapes for production in native format and produce active emails in native format with metadata. Upon finding the backup tapes inaccessible, the court undertook the relevant cost-shifting analysis and determined that if Plaintiffs wanted production of the contents of the backup tapes in native format, they would be responsible for the cost. The court also determined that TIFF images were a reasonable format for production and declined to compel production of active emails in native format or production of metadata. Accordingly, “Plaintiffs’ requests for the production of Backup Databases, the Active Emails in Native, and the Metadata” were denied without prejudice.

In Patent Case, Court Indicates Importance of Damages Disclosures to Proportionality Calculation

May 27 2015

Corning Optical Commc’ns Wireless Ltd. v. Solid, Inc., No. 5:14-cv-03750-PSG, 2015 WL 1726749 (N.D. Cal. Apr. 14, 2015)

In this patent infringement case, the court addressed the “classic chicken-and-egg” problem of requiring initial disclosures regarding damages where “[t]o provide meaningful calculations, patentees need lots of information from accused infringers. But the expense of producing lots of information can only be justified by a meaningful calculation suggesting that substantial dollars are actually at stake.” The court explained that despite significant discovery in the present case, including the exchange of “reams of data,” “neither side ha[d] any firm sense of whether this [was] a $1 case or a case worth billions.” Moreover, the court explained, “the parties here are not unusual. For years it has been the norm in patent cases to bludgeon first and value second.” In granting Defendant’s motion to compel, the court acknowledged that the information sought was not only important to the defendant, but also to the court, stating: “Proportionality is part and parcel of just about every discovery dispute.”

Court Allows Deposition of Court-Appointed Forensic Expert, Cites Benefit to the Court, Orders Special Master to Participate in Questioning

May 18 2015

Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015)

In this opinion, the court addressed Defendant’s motion to take the deposition of the court-appointed, neutral, computer forensic expert who conducted a forensic analysis of Plaintiff’s electronic media and discovered a number of deletions. Plaintiff and Defendant differed regarding the meaning of the expert’s report and filed competing summaries. Accordingly, Defendant sought to conduct a deposition of the expert. The court granted the motion, noting the importance of the deposition in assisting the court to understand the issues before it and ordered a specific deposition protocol, including that the Special Master conduct a portion of the questioning.

Archive - 2015