Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

1
Qualcomm Accepts Sanctions Issued by Magistrate Judge and Pays Entire $8,568,633.24 Sanction to Broadcom
2
Senate Passes Proposed Evidence Rule 502
3
Defense Counsel’s Unilateral Modification of Parties’ Stipulated Privilege Screening Process Results in Additional Expert Costs and Over-Exclusion of Email
4
K&L Gates’ E-Discovery Case Database Has Fresh New Look, More Features, and Now Over 900 Cases
5
Notwithstanding Objections to Magistrate Judge’s January 7 Order, Sanctioned Attorneys Appear and Participate in CREDO Program
6
Court Declines to Order Production of Metadata Where Request for Production Did Not Specify Production in Original Format, and Orders Evidentiary Hearing on Spoliation Allegations
7
Managing Discovery of Electronic Information: A Pocket Guide for Judges
8
List of States Actively Considering the Adoption of Special E-Discovery Court Rules
9
Virginia Supreme Court Seeking Public Comment on Proposed E-Discovery Amendments
10
Alaska Supreme Court Seeks Public Comment on Proposed E-Discovery Amendments

Qualcomm Accepts Sanctions Issued by Magistrate Judge and Pays Entire $8,568,633.24 Sanction to Broadcom

In its Reply to Broadcom Corporation’s Response to Objections of Responding Attorneys to Sanctions Order of Magistrate Judge filed on February 20, 2008, Qualcomm states that it acccepts the sanctions imposed by Magistrate Judge Barbara Lynn Major and is not appealing or filing any objections to the January 7, 2008 Sanctions Order.  Qualcomm further advises that it has now paid to Broadcom the full $8,568,633.24 monetary sanction ordered by the Magistrate Judge, and notes that it is participating in good faith in the CREDO program.

Qualcomm goes on to point out that Broadcom never requested that sanctions be imposed on the individual outside counsel who had formerly represented Qualcomm in the litigation.  “Accordingly, Broadcom has no basis for (a) complaining about Qualcomm’s compliance with the Sanctions Order since Qualcomm has in good faith done everything ordered by the Magistrate Judge; or (b) ‘responding’ to any objections to the Sanctions Order since those objections were filed only by the individual attorneys – not Qualcomm – and Broadcom did not even seek sanctions against the individual attorneys.”  Qualcomm rejected Broadcom’s suggestion that the district court might refer certain issues back to the Magistrate Judge so that she could consider additional sanctions against Qualcomm.  It stated that there had been no suggestion that the Magistrate Judge lacked authority to issue sanctions against Qualcomm, and now that Qualcomm had complied fully with the Sanctions Order, and had not objected to or appealed the sanctions, there is simply no need to re-open it.
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Senate Passes Proposed Evidence Rule 502

On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The bill now goes on to be voted on in the House of Representatives. 

The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.

On February 25, 2008, the Senate Judiciary Committee had reported favorably on the bill.  See Sen. Rept. No. 110-264.

Additional information about the legislation may be found on the Library of Congress "Thomas" website, and at http://www.govtrack.us/congress/bill.xpd?bill=s110-2450.

Defense Counsel’s Unilateral Modification of Parties’ Stipulated Privilege Screening Process Results in Additional Expert Costs and Over-Exclusion of Email

Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008)

This Fair Labor Standards Act overtime collective action was brought on behalf of approximately 422 plaintiffs who worked as "loan consultants" for defendants.  After defense counsel objected to plaintiffs’ requests to produce emails of the several hundred individual plaintiffs and their 32 team leader managers, plaintiffs agreed to limit the relevant time period to the months of April, May and June of 2004.  They proposed that, after they reviewed all the emails and narrowed them down to those they thought were relevant, they would give defendants an opportunity to review this reduced set of emails and raise any attorney client privilege or other objections they might have and retrieve items that should be protected.  Fearing that this "claw back" provision could be deemed a waiver of the privilege in some states, defense counsel was relunctant either to agree to the provision or to produce the relevant back up tapes because of the exceedingly expensive process of defense counsel screening them for privilege before production.

Plaintiffs filed a motion to compel to resolve the dispute and a hearing was held.  The court established a protocol that was intended to balance the concerns and needs of both sides at what was hoped to be manageable costs.  Under the protocol, plaintiffs’ computer forensic expert, Mark Lanterman, was to retrieve from defendants’ computer back up tapes all of the emails for the months of April, May and June of 2004.  Based on search terms and methods to be worked out by the attorneys for both sides, Mr. Lanterman, "at Plaintiffs’ reasonable expense for his services and the electronic copying expenses," was to filter this database for the team leaders and hundreds of plaintiffs.  Mr. Lanterman was to act under the "direction and control" of defense counsel in retrieving the requested emails from the backup tapes.  The searching and filtering of defendants’ database by Mr. Lanterman would be limited to the terms agreed upon by the parties.  Further, Mr. Lanterman was required to sign a declaration agreeing to the agency relationship with and under the direction and control of defense counsel, to be bound by the court’s orders and to maintain confidentiality.  At the hearing, while plaintiffs’ counsel agreed to pay the reasonable expenses of Mr. Lanterman, he expressed a desire to limit the costs to no more than what was needed and not to be giving defense counsel a "carte blanche" to run up the costs of the screening procedure at plaintiffs’ expense.

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K&L Gates’ E-Discovery Case Database Has Fresh New Look, More Features, and Now Over 900 Cases

We are pleased to announce that we have enhanced our searchable e-discovery case database and have added a number of new attributes – several of which correspond with the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  For example, you can now select the attribute “FRCP 37(e) Safe Harbor,” click “Search,” and view a list of cases that have cited or discussed the new “Safe Harbor” rule.  Other new attributes that we have added include:

  • FRCP 26(b)(2)(B) “Not Reasonably Accessible”
  • FCRP 34(b) Procedure or Format
  • FRCP 26(b)(2)(C) Limitations
  • FRCP 26(b)(5)(B) or Proposed FRE 502
  • Early Conference or Discovery Plan
  • Local Court Rule, Form or Guideline
  • Motion for Preservation Order 

What’s more, the database now contains over 900 e-discovery cases from state and federal jurisdictions, with new cases being added every week.  Now more than ever, our database is an excellent source of information on developing e-discovery case law around the country.

The database is still searchable by keyword, or by any combination of 28 different case attributes.  Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available.

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Notwithstanding Objections to Magistrate Judge’s January 7 Order, Sanctioned Attorneys Appear and Participate in CREDO Program

On January 29, 2008, attorneys James R. Batchelder, Adam A. Bier, Kevin K. Leung, Christian E. Mammen, Lee Patch and Stanley Young, as well as certain Qualcomm in-house attorneys, appeared before United States Magistrate Judge Barbara L. Major, as directed in her January 7, 2008 Order.  Also appearing were outside counsel for Qualcomm, counsel for some of the sanctioned attorneys, and counsel for Broadcom.  The attorneys spent the day working to develop a comprehensive Case Review and Enforcement of Discovery Obligations ("CREDO") protocol, and at the end of the day, several attorneys appeared before the court again to report on their progress.  After reviewing counsel’s draft protocol and hearing their plans for developing it further, Magistrate Judge Major scheduled a status hearing for February 19, 2008 at 11 a.m.

Also on January 29, 2008, United States Senior District Judge Rudi M. Brewster issued an order requesting that the parties provide him with courtesy copies of all their filings related to the Magistrate Judge’s January 7, 2008 Order, in light of the objections and requests for reconsideration that were timely filed by the sanctioned attorneys.  (Qualcomm itself did not file a written objection to the January 7, 2008 Order.)  View the attorneys’ objections here:  Batchelder, Mammen & Leung Objection; Young Objection; Patch Objection; Bier Objection.

View Broadcom’s response to the attorney objections.

The court has not yet set a hearing date on the attorneys’ objections and requests for reconsideration.

Court Declines to Order Production of Metadata Where Request for Production Did Not Specify Production in Original Format, and Orders Evidentiary Hearing on Spoliation Allegations

D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43 (D.D.C. 2008)

In this contentious employment discrimination case, Magistrate Judge John M. Facciola resolved a number of discovery disputes relating to the production of electronically stored information.

Among other relief, plaintiff sought the production of a certain business plan in its original electronic format, with accompanying metadata.  Plaintiff argued that Fed. R. Civ. P. 34 permits the production of documents outside of their original format only "if necessary," and that in this case, there was no such necessity.  Defendants responded that:  (a) plaintiff did not request that the Business Plan or any other documents be produced in a specific format; (b) production in original electronic format with metadata is not required by the Federal Rules of Civil Procedure or in the absence of a clear agreement or court order, neither of which were present here; and (c) plaintiff had not demonstrated the relevance of the metadata.

The court rejected plaintiff’s interpretation of Rule 34:

Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request.  Consequently, the "if necessary" clause seized upon by plaintiff is actually a constraint on the requesting party rather than the responding party.  In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium.  If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a "reasonably usable form."  Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done "if [the translation is] necessary."  It is not the case that this clause requires the responding party to produce data in its original form unless "necessary" to do otherwise.
 

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Managing Discovery of Electronic Information: A Pocket Guide for Judges

By Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins

Federal Judicial Center (2007)

This “Pocket Guide” identifies problems that recur during the course of electronic discovery, and presents management tools that federal judges may use for responding to them.  The 26-page publication may be downloaded from the Federal Judicial Center’s website, free of charge.

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List of States Actively Considering the Adoption of Special E-Discovery Court Rules

A number of states are considering whether to adopt special court rules addressing the discovery of electronically stored information.  Here is a current list of those states that have published proposed rules amendments for public comment, with links to the relevant materials.

Alaska
Currently seeking public comment on proposed rules; deadline is Friday, 2/29/2008.
Request for Comments on Proposed Rule Changes 

California
Currently seeking public comment on proposed rules; deadline is Friday, 1/25/2008. 
Invitation to Comment 

Iowa
Period for public comment on proposed amendments closed on 5/1/2007.
Request for Public Comment Regarding Proposed Amendments to the Iowa Rules of Civil Procedure

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Virginia Supreme Court Seeking Public Comment on Proposed E-Discovery Amendments

The Virginia Supreme Court’s Advisory Committee on Rules of Court has unanimously concluded that it should publish a Tentative Draft of possible rules amendments on the topic of electronic discovery.  The Tentative Draft takes into account the detailed comments on an initial discussion draft circulated several months ago.  It is the Advisory Committee’s plan to consider these draft rules at its April, 2008 meeting and to discuss all comments and suggestions received concerning the structure and content of the proposed provisions.

If approved by the Advisory Committee, the rules proposals would be recommended to the Judicial Council of Virginia and the Supreme Court, which will decide whether the rules should be approved and promulgated as Rules of Court.

Comments on the Tentative Draft should be sent by March 15, 2008 to:

Karl R. Hade, Executive Secretary
Supreme Court of Virginia
00 North Ninth Street
Richmond, VA 23219

Alaska Supreme Court Seeks Public Comment on Proposed E-Discovery Amendments

The Alaska Supreme Court is now seeking public comment on a proposal to amend the Alaska Rules of Court to align Alaska’s discovery rules with the December 2006 federal rules amendments addressing the discovery of electronically stored information.  The Civil Rules Committee is recommending amendments to Alaska’s Civil Rules 16, 26, 33, 34, 37, and 45.

Comments are due by Friday, February 29, 2008, and may be submitted by mail, fax, or email:

Beth C. Adams
Court Rules Analyst
Snowden Administrative Office Building
820 West Fourth Avenue
Anchorage, AK 99501-2005

Fax number:  (907) 264-8291

Email address:  badams@courts.state.ak.us

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