Catagory:Market Announcements

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:

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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.

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.

The National Law Journal, Feb. 20, 2009
By Marcia Coyle

Despite reassuring statements by Attorney General Eric Holder on the issue of attorney-client privilege waivers in corporate investigations, a key senator is moving forward with legislation to put protection for the privilege and the work-product doctrine into law and throughout government.

Sen. Arlen Specter, R-Pa., the ranking minority member of the Senate Judiciary Committee, has reintroduced, with bipartisan support, the Attorney-Client Protection Act of 2009, S. 445.

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CNET News, Feb. 19, 2009
By Declan McCullagh, Chief Political Correspondent

Republican politicians on Thursday called for a sweeping new federal law that would require all Internet providers and operators of millions of Wi-Fi access points, even hotels, local coffee shops, and home users, to keep records about users for two years to aid police investigations.

The legislation, which echoes a measure proposed by one of their Democratic colleagues three years ago, would impose unprecedented data retention requirements on a broad swath of Internet access providers and is certain to draw fire from businesses and privacy advocates.

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Hynix Semiconductor Inc. v. Rambus Inc., 2009 WL 292205 (N.D. Cal. Feb. 3, 2009)

Beginning in 2000, Rambus Inc. (“Rambus”) alleged that several companies had infringed its patents and instituted legal action.  Among the companies accused by Rambus were Micron Technology, Inc (“Micron”) and Hynix Semiconductors, Inc. (“Hynix”).  In response to the allegations of infringement, both Micron and Hynix filed actions for declaratory judgment in Delaware and California, respectively.  Both Micron and Hynix also asserted the unenforceability of the patents and alleged that Rambus had unclean hands as a result of extensive document destruction.  In both cases, a bench trial was held on the unclean hands defense.

In January 2006, the California court ruled in Rambus’s favor holding that Hynix’s defense of unclean hands had failed.  Hynix Semiconductor, Inc. v. Rambus Inc., 2006 WL 565893 (N.D. Cal. Jan. 5, 2006).  In January 2009, the Delaware court ruled in Micron’s favor holding that Rambus had destroyed documents in bad faith and, as a sanction, ordered the patents unenforceable against Micron.  Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009).

Based on the ruling of the Delaware court, Hynix moved for summary judgment on the basis of defensive non-mutual issue preclusion or, in the alternative, for reconsideration of the California court’s prior decision regarding Rambus’s actions.  Those motions were denied, leaving in place the conflicting rulings of the two courts.

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U.S. v. Nicholas, 594 F. Supp. 2d 1116 (C.D. Cal. 2008)

In this case, the United States District Court in the Central District of California denied defendant Henry Nicholas’s motion to block the production of an incriminating email and for an order preventing the use of the email for cross examination or impeachment should Nicholas testify.  Rejecting Nicholas’s argument that the email was protected from disclosure by marital privilege, the district court held that a Ninth Circuit ruling that the email was subject to some protection by the marital privilege did not preclude all potential use of the email.  Accordingly the district court held that because the email could constitute the admission of a co-conspirator and be admissible at trial under other limited circumstances, it must be disclosed to Nicholas’s co-defendant.

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On December 16, 2008, the Michigan Supreme Court adopted amendments to Michigan’s Court Rules to address discovery of electronically stored information in civil litigation.  The new rules became effective January 1, 2009.

The adopted amendments affect the following rules:

2.302 General Rules Governing Discovery
2.310 Requests for Production of Documents and Other Things; Entry on Land
for Inspection and Other Purposes
2.313 Failure to Provide or Permit Discovery; Sanctions
2.506 Subpoena; Order to Attend

The order approving the amendments is available here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

Effective January 1, 2009, Louisiana has adopted amendments to several civil rules to specifically address the treatment of electronically stored information.

CCP 1354 Subpoena deuces tecum – was amended to govern the form of electronically stored information produced in response to a subpoena duces tecum and specifically addresses the format of production and production of documents not reasonably accessible, among other things.

CCP 1471 Failure to comply with order compelling discovery; sanctions – was amended to establish that where electronically stored information is lost as the result of a routine, good-faith operation of an electronic information system, a court may not impose sanctions pursuant to this rule.

CCP 1551 Pretrial and scheduling conference; order – was amended to specifically direct consideration of discovery of electronically stored information in the pre-trial order.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.
 

State ex rel. Toledo Blade Co. v. Seneca County Bd. Of Comm’rs, 899 N.E.2d 961 (Ohio 2008)

This case arose from plaintiff’s request to review “all outgoing and incoming emails” of several Seneca County Commissioners following the board’s approval of plan that called for the demolition of the courthouse.  Plaintiff alleged that the county’s production was deficient and cited a lack of emails from a particular time frame as well as alleged admissions by particular commissioners that they had deleted relevant messages.

Following these allegations, the board discovered additional emails for production and subsequently undertook a search in “every single folder in the hard drives of the computers of every person from whom emails were requested” and produced all responsive documents. The board did not undertake efforts to recover deleted messages, however, arguing that “while it may be possible to retrieve additional information from a hard drive with very expensive forensic tools, that information would be considered deleted by the user and would not be available to the user.” At all relevant times, the board maintained a schedule for records retention that allowed for the deletion of email deemed to have “no significant value.” The determination of “value” was left to each individual “computer user” pursuant to that policy.

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