Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: No adverse inference warranted for alleged spoliation of audio recordings, since plaintiff failed to establish first element that recordings ever existed; however, plaintiff would be free to elicit testimony concerning the alleged recordings at trial
Nature of Case: Employment litigation
Electronic Data Involved: Audio recordings of two conversations
Key Insight: Court denied plaintiffs? request for additional round of pre-certification discovery on defendant?s process of preserving, locating and producing responsive documents, since some electronic documents had been produced and only basis for motion was general ?paucity? of defendant’s document production and ?theoretical possibility? that other electronic documents might exist
Nature of Case: Putative class action against Postmaster General by deaf postal employees
Electronic Data Involved: Unspecified electronic documents
Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. 2008)
In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents. Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the return of the documents was delayed, and that it failed to produce complete and accurate privilege logs as to those documents.
In February 2007, Rhoads began preparing for its anticipated litigation against Building Materials Corporation of America. Realizing the likelihood of extensive electronic discovery, Rhoads directed its IT consultant to research software to assist with the electronic discovery effort. The IT consultant eventually purchased Discovery Attender (or “Sherpa”) to perform the necessary electronic data searches. Shortly thereafter, the IT consultant and his team began work to identify locations of potentially relevant information.
Barnett v. Simmons, 197 P.3d 12, 2008 OK 100 (2008)
In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him. Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil. Accordingly, Rock Oil sought production of plaintiff’s hard drive. Plaintiff objected, but the parties attempted to reach agreement as to how to accomplish production. No agreement was reached. Rock Oil filed a motion to compel and the court granted the motion. Although the parties were then able to agree on a neutral examiner, the plaintiff dismissed his claims prior to the examination, but expressed his intent to re-file within three months.
Pennsylvania Bar Institute: e-Discovery
December 2, 2008
9:00 AM – 4:30 PM EST
Several Locations, Webcast
K&L Gates partner David Cohen will speak at two sessions during this event. The first presentation, “ABCs of EDD” will begin at 9:05 a.m. The second presentation, “E-Discovery Ethics” will begin at 3:30 p.m.
According to a Revisor’s note:
The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb. Ct. R. Disc. § 6-326, etc., with the last two numbers of the newly renumbered sections corresponding to the former rule.
This affects recent amendments to former rules 33, 34, and 34A, addressing e-discovery issues. Those rules are now known as follows:
§ 6-333 Interrogatories to Parties
§ 6-334 Production of documents, electronically stored information, and things and
entry upon land for inspection and other purposes
§ 6-334A Discovery from a nonparty without a deposition
Effective July 18, 2008
For a current list of all states that have enacted special e-discovery rules, see our updated post here.
Arizona’s Supreme Court has approved amendments to Arizona’s Rules of Family Law Procedure that will address several major e-discovery issues. The amended rules are based on Arizona’s Rules of Civil Procedure and will become effective January 1, 2009. The amendments include changes to the following rules:
Ariz. R. Family Law P. 49 Disclosure
Ariz. R. Family Law P. 51 Discovery
Ariz. R. Family Law P. 52 Subpoena
Ariz. R. Family Law P. 62 Production of Documents and Things and Entry
Upon Land for Inspection and Other Purposes
Ariz. R. Family Law P. 65 Failure to Make Disclosure or Discovery; Sanctions
To read the order and see the amendments, click here.
For a current list of all states that have enacted special e-discovery rules, see our updated post here.
Qualcomm Inc. v. Broadcom Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008)
At trial in this case, Broadcom made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications. Qualcomm’s claimed lack of participation in the JVT was a core element of its claims for patent infringement against Broadcom. Judge Brewster referred the discovery aspects of that motion to Magistrate Judge Major and then issued an Order on Remedy for Finding of Waiver based on his determination that Qualcomm’s attorneys had participated in a sequence of discovery misconduct throughout the litigation process. However, because those attorneys had not had an opportunity to be heard before the order was issued impugning their behavior and in order to afford them an opportunity to be heard on the potential imposition of attorney sanctions, the court issued an Order to Show Cause Why Sanctions Should not be Imposed.
At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery.
The following Districts have just been added to our collection of United States District Court local rules, standards, guidelines and judge-mandated forms and protocols:
Northern District of Illinois
Judge Virginia Kendall’s Case Management Procedures, Discovery
Magistrate Judge P. Michael Mahoney’s Suggested Case Management Order
Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008)
In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production. Plaintiff identified and provided the key words to the defendant.
The first key words list contained 120 terms. After efforts to ensure the search would be productive, including converting certain files to a different format, Abercrombie ran the search. There were many hits. To reduce the volume, plaintiffs crafted a revised list of 123 terms. Another search was run and when the results came in, the parties agreed that some data sets from among the results would be reviewed and produced. Abercrombie produced those documents. The parties also agreed that further refinements of the search would be necessary to cut down the remaining results. Accordingly, plaintiff’s counsel sent 6 additional terms to Abercrombie to be run in proximity to other specified terms.
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