kgates – Page 22 – Electronic Discovery Law

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.

Northern District of California Adopts New E-Discovery Guidelines

Nov 29 2012

This week, the U.S. District Court for the Northern District of California announced "new Guidelines for counsel and litigants regarding the discovery of electronically stored information ("ESI")."

According to the Court’s announcement:

The Guidelines are designed to establish best practices for evidence preservation in the digital age and to ensure that local practices regarding the discovery of ESI keep pace with rapidly evolving technology and to be flexible enough to be used in a wide variety of cases. According to Judge Laporte: “These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure.”

The package of new ESI-related documents comprises:

• Guidelines for the Discovery of Electronically Stored Information;
• ESI checklist for use during the Rule 26(f) meet and confer process;
• Model Stipulated Order Re: the Discovery of Electronically Stored Information.

To read the full text of the announcement, click here.
To access the new guidelines and related documents, click here.

Use of a Hammer and of Wiping Software to Destroy Evidence Results in Dismissal of Plaintiff’s Claims

Nov 27 2012

Taylor v. Mitre Corp., No. 1:11-cv-1247, 2012 WL 5473573 (E.D. Va. Nov. 8, 2012) adopting recommendations of Taylor v. Mitre Corp., No. 1:11-cv-01247 (LO/IDD), 2012 WL 5473715 (E.D. Va. Sept. 10, 2012)

In this case, the Magistrate Judge found that dismissal of Plaintiff’s claims was warranted for his “egregious” discovery conduct, including physically destroying a relevant computer with a hammer and using both Evidence Eliminator and CCleaner to erase potentially relevant evidence. The court also recommended that Plaintiff pay Defendant’s reasonable attorney’s fees and costs incurred as a result of the spoliation. On appeal, the recommendations were adopted by the District Court.

For Failure to Preserve, Court Orders Production of Privileged Documents and Work-Product

Nov 16 2012

United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT, 2012 WL 5387069 (D.N.M. Oct. 3, 2012) overruling objections to United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT (D.N.M. Aug. 31, 2012)

In this case, the Magistrate Judge determined that sanctions were warranted for the Government’s untimely and inadequate litigation holds, which resulted in prejudice to Defendants. As a sanction, the Magistrate Judge recommended that that the Government be ordered to produce documents that it had withheld as privileged and/or work product, that Defendants were entitled to recover reasonable attorneys fees and costs, and that the Government must show cause why additional searching should not be required. The District Court overruled objections to the order.

Court Orders Broad Discovery of Class Members’ Social Media, Text Messages & Email

Nov 13 2012

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

In this case involving allegations of sexual harassment, a hostile environment and retaliation, the court granted in part Defendant’s Motion to Compel and ordered broad discovery of class members’ social media, text messages and email.

Da Silva Moore : Judge Carter Denies Motion for Recusal or Disqualification

Nov 09 2012

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Nov. 8, 2012)

On November 8th, District Court Judge Andrew L. Carter, Jr. filed his long awaited decision in response to Plaintiffs’ Motion for Recusal or Disqualification of Magistrate Judge Andrew Peck. In his short and to the point opinion, Judge Carter concluded that “Judge Peck’s decision accepting computer-assisted review, reached upon consideration of the applicable law, was not influenced by bias, nor did it create any appearance of bias.” The court further found that “Magistrate Judge Peck’s conduct falls within proper bounds of judicial conduct” and that “[h]is denial of Plaintiffs’ recusal motion is consistent with the interests of judicial economy and the administration of justice.”

A full copy of the order is available here.

For Discovery Violations, Court Orders Retention of Outside Vendor to Collect Responsive Documents, Investigate Possible Spoliation

Nov 02 2012

Carrillo v. Schneider Logistics, Inc., No. CV 11-8557-CAS (DTBx), 2012 WL 4791614 (C.D. Cal. Oct. 5, 2012)

In this case, the court concluded that Defendant failed to comply with its discovery obligations by 1) failing to conduct a reasonably diligent search, 2) improperly withholding responsive documents, and 3) failing to take adequate steps to ensure preservation. Accordingly, the court ordered that an outside vendor be retained to search for and collect Defendant’s responsive documents and to determine if any documents had been permanently deleted, at Defendant’s expense. The court also ordered monetary sanctions.

Cloud Considerations: E-Discovery

Nov 02 2012

By: Katie Taylor, K&L Gates

SaaS, PaaS and data hosting providers stress the significant efficiencies to be gained from cloud computing when marketing their services. Depending on the cloud computing system you are considering, however, a number of features may have a significant impact on your company’s ability to comply with electronic discovery obligations should it be sued or subpoenaed.

To read the entire article, click here.

Court Instructs Parties to Utilize Predictive Coding, Requires Show of Cause to Avoid It

Oct 26 2012

EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. Oct. 15, 2012)

Following argument on partial summary judgment and a motion to dismiss in the Delaware Court of Chancery on Monday, Vice Chancellor J. Travis Laster turned to the topic of a scheduling order and, apparently without outside provocation, addressed the issue of predictive coding:

The Court: Thank you. Why don’t you all talk about a scheduling order for the litigation on the counterclaims. This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information. If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

One thing I don’t want to do – one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on. The problem is that these types of indemnification claims can generate a huge amount of documents. That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.

Transcript of Motion for Partial Summary Judgment, Motion to Dismiss Counterclaim and Ruling of the Court at 66-67, EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. Oct. 15, 2012).

Following this exchange, counsel were asked if they had anything else they wished to discuss, to which both responded they did not. Watch this blog for further developments in this case.

Author - kgates