Electronic Discovery Law – Page 236 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Delaware Court of Chancery Issues Guidelines for Preservation of Electronically Stored Information

Jan 25 2011

Last week the Delaware Court of Chancery issued new guidelines addressing the preservation of electronically stored information. The guidelines are intended to “remind all counsel … of their common law duty to their clients and the court with respect to the preservation of electronically stored information.” Although less than two pages long, the guidelines offer a straightforward discussion of the preservation obligation that arises upon anticipation of litigation and address specific topics including the need for attorney oversight in preservation, steps to be taken in “most cases,” “potential problem areas,” and the possibility of limiting or even eliminating the discovery of ESI upon agreement with opposing parties and their counsel, among other things.

A full copy of the guidelines are available here.

Employee’s Use of a Work Computer to Communicate with Attorney “Akin to Consulting her Lawyer in her Employer’s Conference Room, in a Loud Voice, with the Door Open…”

Jan 24 2011

Holmes v. Petrovich Dev. Co., LLC, 119 Cal. Rptr. 3d 878 (Cal. Ct. App. 2011)

Where plaintiff used her company’s computer to communicate with her attorney despite knowledge of policies prohibiting such use and establishing that employees had no right of privacy as to such materials, the court found that the emails “did not constitute ‘confidential communication between client and lawyer’ within the meaning of Evidence Code section 952” and thus were not privileged and affirmed the holdings of the trial court.

Production of Servers without Review Waives Privilege and so Might Storage of Privileged Materials on Servers Shared with Other Entities

Jan 18 2011

In re Fontainebleau Las Vegas Contract Litig., 2011 WL 65760 (S.D. Fla. Jan 7, 2011)

In this case, the court found that privilege had been waived as a result of a third party’s voluntary production of servers believed to contain privileged materials without review.

The Term Lenders sought production of documents related to the financing of the construction of the Fontainebleau Resort and Casino in Las Vegas from the third-party parent of Fontainebleau Las Vegas, Fontainebleau Resort, LLC (“FBR”). FBR resisted production of its documents, albeit without formal motions, until approximately six months after receipt of the subpoena. During that time, FBR initially alleged that production would be delayed because of the shared status of the servers on which its information was stored and the need to separate its documents from those of other entities by allowing those entities to review all documents stored thereon to determine ownership, privileged status, etc. FBR had previously raised this issue in the context of an unsuccessful motion to quash similar subpoenas from other banks. The court’s footnote regarding the shared servers is illuminating:

K&L Gates, EDRM Collaborate to Enhance E-Discovery Database

Jan 12 2011

As a way of continuing to enhance the value of Electronic Discovery Law, we recently embarked on a project with the e-Discovery Reference Model (EDRM) to classify the more than 1,800 cases in our case database according to the EDRM standards. These cases will retain their existing searchable tags in addition to the new EDRM classification. To accomplish this, several EDRM member organizations will soon participate in an “EDRM Coding Challenge” to determine how to most efficiently and accurately identify the EDRM phases to be associated with each case in the database. Thanks to George Socha, Tom Gelbmann, and the challenge participants from EDRM for their contributions to this project so far and special thanks to LexisNexis and Applied Discovery for supplying the full text of the first 200 case opinions to be coded. Please watch our blog for updates on this exciting collaboration.

In the meantime, our case database remains available for your e-discovery research needs.

Jury to Determine Question of Bad Faith and Whether to Draw Adverse Inference as Sanction for Loss of Video Pursuant to Document Retention Policy

Jan 07 2011

Rattray v. Woodbury County, 2010 WL 5437255 (N.D. Iowa Dec. 27, 2010)

In this case, the court imposed sanctions for defendants’ failure to preserve relevant video footage and ordered an instruction allowing the jury to determine whether the recording was destroyed in bad faith and, if so, to infer that it would have been unfavorable to the defendants. In so holding, the court cited as an important factor that the video was the only recording of what occurred, “which weighs heavier in this case than the lack of actual knowledge that litigation was imminent at the time of the destruction.”

Welcome Wisconsin! E-Discovery Amendments Become Effective January 1, 2011

Dec 31 2010

On January 1, 2011, the e-discovery amendments to Wisconsin’s rules of civil procedure become effective. The amendments, affecting Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, address for the first time the discovery of electronically stored information (“ESI”). Among other things, the amendments address issues including the parties’ obligation to meet and confer, the format of production, and safe harbor from sanctions when ESI is lost as the result of the routine, good-faith operation of an electronic system.

Discovery of Social Networking Sites

Dec 29 2010

By: Martha Dawson, Michael Goodfried, K&L Gates

This article appeared in DRI’s E-Discovery Connection, Volume 5 Issue 3, on December 23, 2010

Consider how you, or someone you know, uses social networking sites; and consider how valuable this could be in litigation.

• “Check out the photos from my climb of Mt. Rainier. It rocked! I guess my back injury wasn’t that bad after all.”
• I can’t believe what my boss just did.”
• “My kids are driving me crazy. Anyone want to borrow them for the night?”

Are Social Networking Sites Discoverable?

Social networking sites are internet sites on which individuals or companies can create profiles about themselves and share information with others. Users can update their status, type blog entries, post pictures or videos, send email or instant messages, or post comments on the profiles of their contacts, among many other offerings. One of the most important aspects of social networking sites is the ability to link up with other users as “friends” or “contacts,” and decide with whom to share information. Users can control their privacy settings and choose which information to make publically available, share with their contacts, share with their contacts’ contacts (friends of friends), or show only to certain individuals. Some of the most popular social networking sites are Facebook, MySpace, Twitter, and LinkedIn.

To read the full article, click here.

Kids’ Access to Mom’s Email Account Waives Attorney-Client Privilege

Dec 28 2010

Willis v. Willis, 914 N.Y.S.2d 243 (N.Y. App. Div. 2010)

Plaintiff filed suit against her former husband and his current wife alleging defamation. Specifically, plaintiff alleged that defamatory statements had been made in an email addressed to her and sent to her account – an account which was also regularly used by the former couple’s children. One of the children read the email. Plaintiff alleged that the act of sending the email to that account constituted publication for purposes of her claim.

In the course of litigation, plaintiff used the same account to communicate with her attorneys. Defendant sought production of those emails contending that they were not privileged. Plaintiff sought a protective order. The trial court ordered their production. On appeal, the court found that plaintiff “failed to meet her burden of demonstrating … that the email communications … were made in confidence” and reasoned:

Court Orders Sharing of Non-Party’s Discovery Costs, Cites Lack of “Spirit of Cooperation or Efficiency” as “Controlling Factor”

Dec 22 2010

DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Defendants and non-party Huron Consulting Services, LLC could not agree on the proper course of discovery. After protracted communications consisting of accusations and demands, defendants sought to compel Huron to conduct additional searches for responsive ESI. The court found that some additional searching was warranted and ordered counsel to meet and confer in person to establish the proper scope. Citing the parties’ failure to cooperate as a “controlling factor” as to cost-shifting, the court ordered the parties to split the costs, with one exception.

Must-haves for your e-discovery toolkit

Dec 20 2010

By: Julie Anne Halter, K&L Gates, Seattle

This article appeared in the Puget Sound Business Journal the week of December 10-16.

In 2007, according to a report from the International Data Corporation, the “digital universe” contained 281 billion gigabytes of data.

That’s the paper equivalent of roughly 2.25 million pages per person.

Commentators predict that by 2011, the digital universe will be 10 times the size it was in 2006. If you consider the last time you wrote a handwritten letter, used a pay phone, or consulted a legal casebook, there is no denying that the world has evolved. And with it, litigation.

To read more, click here (subscription required).