Electronic Discovery Law – Page 237 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Court Holds there is a Reasonable Expectation of Privacy in the Contents of Emails

Dec 17 2010

United States v. Warshak, 631 F.3d 266 (6th Cir. Dec. 2010)

In this lengthy opinion, the court considered the question of whether an account holder has an expectation of privacy as to the contents of his emails. Answering in the affirmative, the court held that “a subscriber enjoys a reasonable expectation privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP’” and that “the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”

UK Introduces Practice Direction 31B Addressing the Disclosure of Electronic Documents

Dec 16 2010

Effective October 1, 2010, the UK has introduced Practice Direction 31B addressing in detail the disclosure of electronic documents. According to the Ministry of Justice, this new Practice Direction “aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.” A comprehensive discussion, the Practice Direction addresses a myriad of topics, including preservation, topics for discussion between the parties, reasonable searching, keyword and automated searching, the disclosure of metadata, and the format of production. The Practice Direction also provides an “Electronic Documents Questionnaire” which may be exchanged by the parties “in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings.” The questionnaire, like Practice Direction 31B, is quite detailed and covers issues like the scope of a reasonable search, suggested search methodologies, preservation, and potential problems related to electronic disclosure.

Practice Direction 31B is available here.

Court Orders Production of Backup Tapes Pursuant to Order of Non-Waiver Under Rule 502(d)

Dec 13 2010

Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)

Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff. Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*

Court Enforces Agreement to Delete Defendants’ Confidential Materials Despite Cost

Dec 08 2010

Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010)

In this case, the parties stipulated to a Confidentiality Order requiring that business information exchanged during the course of discovery would be returned or destroyed at the end of litigation. Relying on the agreement, defendants provided access to “their core business secrets.” When the case settled, plaintiff’s counsel discovered that defendants’ information had been backed up to “numerous back-up tapes” on their law firm’s computer system. Plaintiff then sought to modify the confidentiality agreement to allow the firm to retain the information “subject to proposed safeguards designed to protect the confidentiality of the information” in light of the cost of deleting the information from the tapes. The motion was denied and plaintiff appealed.

Dissent to Order Adopting Mandatory Meet and Confer Rule Highlights Tension in Addressing Cost and Efficiency in E-Discovery

Dec 02 2010

In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010)

On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting an amendment to Wis. Stat. § 804.01 prohibiting parties from engaging in electronic discovery until after the parties confer regarding several specified issues. The rule states that “[n]o party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court …” The mandated issues for discussion include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of the proposed discovery and the extent to which such costs shall be limited, among other things. If a party fails to participate or if agreement cannot be reached, judicial intervention may be sought. The purpose of such a rule, as expressed in its attendant note, is to “manage the costs of the discovery of electronically stored information.”

Conceptus, Inc. v. Hologic, Inc., No C 09-02280 WHA, 2010 WL 3911943 (N.D. Cal. Oct. 5, 2010)

Dec 01 2010

Key Insight: Where plaintiff had previously produced a particular two page letter in prior litigation but was unaware of that production because it was not used in any deposition or pleading in that case, and where plaintiff?s counsel agreed, in subsequent litigation, to produce those documents that were previously produced in the prior litigation, which included the letter, and did not conduct a privilege review because of the belief that such a review had been conducted before production in the prior litigation, the court found that plaintiff did not take reasonable steps to prevent the disclosure and therefore waived privileged and reasoned, in part, that ?[m]erely asserting that prior counsel inadvertently disclosed the letter does not meet the burden of proof,? citing Plaintiff?s failure to describe the circumstances surrounding the letter?s original production or any steps to prevent the disclosure

Electronic Data Involved: two page letter

Chenault v. Dorel Indus., Inc., No. A-08-CA-354-SS, 2010 WL 3064007 (W.D. Tex. Aug. 2, 2010)

Dec 01 2010

Key Insight: Court approved defendant?s recovery of costs related to the creation of an electronic database where the database was utilized to reduce the otherwise recoverable costs of printing the approximately 800,000 pages of emails produced to plaintiffs

Electronic Data Involved: Costs of electronic database created in lieu of printing emails for production

Dana Ltd. v. American Axle & Mfg. Holdings, Inc., 2010 WL 5394885 (W.D. Wash. Dec. 22, 2010)

Dec 01 2010

Key Insight: Court granted defendant?s motion to clarify the agreed preliminary injunction order where, following entry of the agreement, defendant determined that the broad language addressing preservation created a cost prohibitive obligation that was broader than necessary to protect the plaintiff and agreed to enter an order reflecting defendant?s proposed revision which was more specific regarding what must be preserved

Electronic Data Involved: ESI

Team Mktg. USA, Corp. v. Energy Brands, Inc., 913 N.Y.S.2d 874 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Where plaintiff requested that defendant produce documents ?in the form and in the same order which in each file in which they existed prior to production? and where defendant then produced email in PDF format, the court denied plaintiff?s request to compel reproduction of the emails upon finding that plaintiff?s request did not constitute a request for a particular format and because the documents had already been produced in ?a reasonably usable format?

Electronic Data Involved: Emails

Ahroner v. Israel Discount Bank of New York, 913 N.Y.S.2d 181 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Court upheld grant of adverse inference for intentional or grossly negligent destruction of a hard drive ordered to be produced for inspection and noted that because the destruction was intentional or grossly negligent, the court?s inference as to the erased emails? relevance was proper

Electronic Data Involved: Contents of hard drive