kgates – Page 54 – Electronic Discovery Law

State has Obligation to Provide Defendants “Meaningful Access” to Copies of Seized Hard Drives

Mar 18 2009

State v. Dingman, 202 P.3d 388 (Wash. App. 2009)

On appeal from his conviction for first degree theft and money laundering, Dingman argued that the trial court erred when it denied his repeated discovery requests for meaningful access to the hard drives seized from his house. The appellate court agreed, and the case was reversed and remanded for a new trial.

On March 19, 2003, officers searched Dingman’s house and seized nine computers. A detective then created mirror image copies of those computers using a program called EnCase. Eventually, Dingman was charged with numerous counts of first degree theft and money laundering.

On January 1, 2004 the State provided Dingman with discovery, including a report containing information about the mirror images copies of his computers taken with EnCase. In August of 2005, Dingman moved for additional discovery, requesting direct access to the computer hard drives or mirror image copies “created in a program used by the defendant’s computer expert.”

American College of Trial Lawyers Releases Final Report Addressing Discovery and Issues Impacting Discovery, Encourages Public Comment and Debate

Mar 16 2009

On March 11, 2009, the American College of Trial Lawyers released its report on discovery and issues impacting discovery. The report is the final product of a joint project between members of the American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System. The project was “conceived as an outgrowth of increasing concerns that problems in the civil justice system, especially those relating to discovery, have resulted in unacceptable delays and prohibitive expense.” The goal of project was to provide Proposed Principles that would “ultimately result in a civil justice system that better serves the needs of its users.”

The Final Report identifies problems in several areas including pleadings, discovery, experts, and dispositive motions and provides Proposed Principles intended to address and resolve those problems. The report’s discussion of discovery includes several Proposed Principles directly addressing the perceived problems in electronic discovery. Among those Proposed Principles are:

Court Imposes Sanctions on Plaintiff and Counsel, Orders Plaintiff to Provide Access to Database and for Attorney and his Law Firm to Pay Defendant’s Costs, Fees, and Expenses

Mar 16 2009

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009)

This case arises from an insurance dispute following damage to Bray & Gillespie’s (“B&G”) resort properties from Hurricanes Charley, Frances, and Jeanne. B&G was represented by Anderson, Kill & Olick, P.C. (“AKO”) in connection with the submission of insurance claims for the damage. B&G, with the assistance of AKO, gathered documents, including electronically stored information (“ESI”) to support those claims. Relevant ESI was downloaded in its native format, scanned, and loaded to a hard drive (“Target Hard Drive”). The ESI was then converted to TIFF images using a program called Extractiva, which also captured the metadata from the ESI. Those images and metadata were then uploaded into the Introspect database and the Target Hard Drive was put in storage. AKO provided copies of the information to Lexington, in paper form and on discs, in support of B&G’s insurance claims. Coverage could not be agreed upon, and on February 13, 2007, B&G filed suit.

California Assembly Approves “Electronic Discovery Act,” Sends Bill to Senate

Mar 13 2009

On March 12, 2009 California’s Assembly took steps toward the legislature’s approval of proposed amendments to California’s Code of Civil Procedure to include rules governing the discovery of electronically stored information, by approving House Assembly Bill 5 and sending the bill to the Senate for its approval. The bill was then introduced in the Senate and has been sent to committee for hearings.

This is the second time California has considered such amendments. On September 27, 2008, the original bill was vetoed by Governor Arnold Schwarzenegger for budgetary reasons. House Assembly Bill 5 is virtually identical to the vetoed bill and was introduced to the Assembly by Assembly Member Noreen Evans on December 1, 2008.

To read the full text of Assembly Bill 5, click here.
To view the history of Assembly Bill 5, click here.

EU Article 29 Working Party Releases Working Document on Pre-Trial Discovery for Cross Border Civil Litigation

Mar 12 2009

On February 11, 2009, the EU Article 29 Working Party, set up under Article 29 of Directive 95/46/EC, released its working document addressing the difficulties of cross border discovery and providing guidance to EU data controllers on how to proceed.

Recognizing the “need for reconciling the requirements of US litigation rules and the EU data protection provisions,” the document is intended to provide guidelines for EU data controllers but also provides valuable insight to American practitioners regarding the difficulties they may face in cross border discovery, especially with European countries. As stated in its introduction:

There is a tension between the disclosure obligations under US litigation or regulatory rules and the application of the data protection requirements of the EU. There is also the issue of the contrast between the geographical and territorial basis of the EU data protection regime and the multinational nature of business where a corporate body can have subsidiaries or affiliates across the globe. This is of particular relevance to the European affiliates of multinational companies which can be caught between the conflicting demands of US legal proceeding and the EU data protection and privacy laws which govern the transfer of personal information.

Specifically, the document discusses the differences between Common Law and Civil Code jurisdictions, making requests for information through the Hague Convention, and relevant Articles of Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing personal data and on the free movement of such data (a/k/a The Data Protection Directive).

A full copy of the Working Document is available here.

Suspicious Timing of Destruction Results in Adverse Inference and Permission to Add a Claim of Exemplary Damages despite Lack of “Smoking Gun”

Mar 10 2009

Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D. Colo. Feb. 25, 2009)

Plaintiffs, as representatives of an estate, retained defendants, including broker Peter Seibert, to assist in selling a piece of the estate’s property. The property eventually sold, on defendants’ recommendation, for approximately $2.8 million. 83 days later, defendants assisted in reselling the property to a development company for $7.2 million. On March 19, 2006, plaintiffs’ counsel contacted defendants and informed them he was conducting an investigation into the sale. On November 2, 2006, plaintiffs filed suit alleging inter alia breach of statutory duties, negligence per se, negligent misrepresentation, and fraud.

Plaintiffs served discovery requests on April 9 and July 30, 2007. Included, were specific requests for electronically stored information (“ESI”) and for inspection and sampling of certain of defendants’ computers. Defendants’ responses indicated that they had searched three primary sources of potentially responsive ESI: Seibert’s old office computer, his home computer, and his laptop.

Court Addresses Tension between Defamation Victim’s Rights and First Amendment Protection of Anonymous Internet Speech, Provides Guidance on How to Proceed

Mar 06 2009

Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009)

Finding plaintiff/appellee failed to show a valid cause of action for defamation, the appellate court vacated an order requiring appellant to identify the alleged anonymous defamers and remanded the case for entry of an order granting appellant’s motion to quash.

In this defamation case, plaintiff/appellee Brodie sought to enforce a subpoena to compel the production of the identities of several persons who posted allegedly defamatory statements about the plaintiff, anonymously, on defendant/appellant Independent Newspaper’s (“Independent”) Internet forum. The circuit court granted Brodie’s motion and ordered Independent to identify the anonymous forum participants. Independent appealed. Finding that the circuit court abused its discretion when it denied Independent’s motion for a protective order because “Brodie had not pleaded a valid defamation claim against any of [the anonymous forum participants],” the appellate court vacated the prior judgment and remanded the case with instructions to grant defendant’s motion for a protective order and quash the subpoena.

Documents Re-Organized and Stored are No Longer Maintained in “Usual Course of Business,” Offer of Inspection Inadequate Discovery Response

Mar 02 2009

Ak-Chin Indian Cmty. v. U.S., 85. Fed. Cl. 397 (Fed. Cl. Jan. 14, 2009)

Ak-Chin Indian Cmty. v. U.S., 2009 WL 320333 (Fed. Cl. Feb 5, 2009) (Denying Defendant’s Motion for Reconsideration but amending prior order in 85 Fed. Cl. 397 to delete certain findings of fact).

In this case, the court granted plaintiff’s motion to compel the defendant to organize and label its responses to plaintiff’s requests for production according to category, and to identify the specific documents from which responses to interrogatories could be derived.

Defendant responded to plaintiff’s discovery requests by making the requested information available for inspection. The information could allegedly be located by querying a database containing data about the contents of each box stored at a particular location. Plaintiff objected to defendant’s response and requested the information be organized and labeled according to the categories of its requests. Finding that the documents offered for inspection were not maintained “in the usual course of business” and thus defendant’s response did not comply with RCFC 34, the court ordered defendant to organize and label the documents as requested by plaintiff. The court also held that defendant had not met the requirements to properly rely upon RCFC 33(d) in responding to interrogatories where the rule allowed the production of business records as a response only where the burden of ascertaining the answer would be substantially the same for either party.

Court Considers Zubulake Factors, Denies Defendant’s Motion to Shift Cost of OCR Processing

Feb 26 2009

Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009)

In this case, following the court’s decision that all documents were to be produced electronically in TIFF format with Optical Character Recognition (“OCR”), defendant asserted that the cost of processing the documents should be shifted to the plaintiff. In support of its assertion, defendant claimed that the cost of conversion to OCR would likely exceed $200,000 and that “it does not itself seek to use the OCR process, and any extra expense would be incurred on it behalf solely for Plaintiff’s convenience.” Defendant offered no evidence in support of its estimate, however, and the court’s own research indicated the estimated cost appeared to be “somewhat inflated.” Nor did defendant deny that the OCR process would make the documents easier to examine, thus reducing costs for attorney time.

Plaintiff Fails to Respond Promptly to Notice of Inadvertent Production, Court Orders Privilege Waived

Feb 24 2009

Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater N.Y., 2009 WL 393644 (E.D.N.Y. Feb. 13, 2009)

In this case, the court was asked to reconsider its prior order compelling defendants to return privileged documents inadvertently produced by the plaintiff. The court declined to overturn its ruling regarding documents specifically identified by the plaintiff as inadvertently produced and addressed by the court’s prior order. However, as to documents not identified at the time of the order, the court declared any privilege waived.

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