Electronic Discovery Law

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

 

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For Over-designation of “Highly Confidential” Documents, Court Orders Expedited Re-Review, Attorney’s Fees
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“[R]equiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”
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It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery
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For Reliance on Employees’ Self-Selection and Failure to Cooperate, Defendant Ordered to Produce Corporate Designee to Explain Retention Policies, Discovery Methods
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In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations
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Noting Reliance Solely on Cost of Discovery, Court Rejects Proportionality Objection
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Satellite Image Labeled with Automatically Generated “Tack” and GPS Coordinates Not Hearsay
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Upcoming Event: Discovery of Social Media: Legal and Practical Considerations
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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment
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Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format

For Over-designation of “Highly Confidential” Documents, Court Orders Expedited Re-Review, Attorney’s Fees

Procaps S.A. v. Patheon Inc., No. 12-24356-CIV-GOODMAN, 2015 WL 4430955 (S.D. Fla. July 20, 2015)

In this case, the court addressed Plaintiff’s designation of 95% of its forensically produced documents as “highly confidential” and, upon Defendant’s motion to compel Plaintiff to re-review and re-designate those documents, ordered that Defendant would be allowed to use all documents, regardless of their initial designation, unless the document was re-designated by the plaintiff in good faith within the short timeframe allowed by the court.  The court also ordered Plaintiff’s counsel to pay $25,000 in attorney’s fees.

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“[R]equiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”

Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), 2015 WL 3453321 (N.D.N.Y. May 29, 2015)

In this case, the court addressed “whether officials in one governmental agency and their Attorney can be sanctioned for the destruction of email(s), belonging to yet another governmental agency, via the New York State’s Email Retention Policy. Essentially, would such an occurrence constitute spoliation of evidence, and, if so, are sanctions warranted?” The court found the answer was “no.”

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It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery

Formal Opinion No. 2015-193 addresses the question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?”

The opinion summarizes the answer as follows:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

To read the full opinion, click here.

For Reliance on Employees’ Self-Selection and Failure to Cooperate, Defendant Ordered to Produce Corporate Designee to Explain Retention Policies, Discovery Methods

Burd v. Ford Motor Co., No. 3:13-cv-20976, 2015 WL 4137915 (S.D. W. Va. July 8, 2015)

In this case, Defendant sought to quash Plaintiffs’ notice of deposition and entry of a protective order precluding Plaintiffs from deposing Defendant’s representative regarding Defendant’s document retention policies and practices and specific methodologies for identifying relevant information in the present case, including Defendant’s admitted reliance on custodian “self-selection.” Citing Plaintiffs’ concerns regarding the sufficiency of Defendant’s discovery efforts and Defendant’s refusal to cooperate and/or to disclose the search terms utilized by its custodians in their search efforts, the court denied Defendant’s requests for protection and ordered the defendant to produce a Rule 30(b)(6) witness to testify regarding “its document retention and destruction polices, and to supply details regarding the document search performed by [Defendant] to date.”

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In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations

Presenters: Desiree F. Moore, Daniel R. Miller, Ivan L. Ascott, & Bree Kelly

On July 16, 2015, a panel of attorneys from K&L Gates presented a webinar discussion addressing the discoverability and admissibility of social media content.  Topics discussed included:

  • the discoverability standards applied by courts with regard to social media content;
  • the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards;
  • the relevance of the federal Stored Communications Act to discovery of information on social media;
  • the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and
  • the considerations pertinent to admission of social media content as evidence.

To download the presentation slides or to view and listen to the webinar, click here.

Noting Reliance Solely on Cost of Discovery, Court Rejects Proportionality Objection

Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ, 2015 WL 3937410 (D. Kan. June 26, 2015)

In this case the court addressed Defendants’ motion to compel and Plaintiff’s objection to discovery based on proportionality. Concluding that Plaintiff failed to adequately establish the alleged burden of the requested discovery, the court granted the motion to compel.

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Upcoming Event: Discovery of Social Media: Legal and Practical Considerations

Please join us for an in-depth discussion of issues related to the discoverability and admissibility of social media content.

Thursday
July 16, 2015
12:00 – 1:30 p.m. EDT
Program will be 90 minutes, followed by time for Q&A

Our panel of K&L Gates lawyers will cover topics including: the discoverability standards applied by courts with regard to social media content; the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards; the relevance of the federal Stored Communications Act to discovery of information on social media; the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and the considerations pertinent to admission of social media content as evidence.

CLICK HERE to register.

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants “spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith” and recommended default judgment.  Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife “left it to her agent—her husband—to respond to Plaintiff’s document requests.”

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Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format

United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015)

In this case, the court addressed Plaintiffs’ demands that Defendants restore ESI contained on disaster recovery backup tapes for production in native format and produce active emails in native format with metadata.  Upon finding the backup tapes inaccessible, the court undertook the relevant cost-shifting analysis and determined that if Plaintiffs wanted production of the contents of the backup tapes in native format, they would be responsible for the cost.  The court also determined that TIFF images were a reasonable format for production and declined to compel production of active emails in native format or production of metadata.  Accordingly, “Plaintiffs’ requests for the production of Backup Databases, the Active Emails in Native, and the Metadata” were denied without prejudice.

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