Archive: May 2007

1
Search and Production Costs of $7,200 Render Non-Party’s Ordinary ESI “Not Reasonably Accessible Due to Undue Burden”
2
City Barely Avoids Spoliation Sanctions and Receives Harsh Reprimand
3
Advisory Committee Modifies Proposed Evidence Rule 502 In Light of Public Comment Received, and Recommends Approval by Standing Committee
4
Search Software Gets Boost From New Rules
5
Evidence Rules Advisory Committee Approves Proposed New Evidence Rule 502, with Modifications
6
Court Sets Out Detailed Guidelines for Discovery of ESI, Adapting “Suggested Protocol” of the District of Maryland
7
Chief U.S. Magistrate Judge Grimm Provides Detailed Analysis of Evidentiary Issues Associated with Electronic Evidence
8
Discovery Savings: Going Native
9
Court Uses Marginal Utility Test to Deny Motion to Compel Production of Deleted Emails from Backup Tapes
10
Senate subpoenas Gonzales on Rove e-mail

Search and Production Costs of $7,200 Render Non-Party’s Ordinary ESI “Not Reasonably Accessible Due to Undue Burden”

Guy Chem. Co. v. Romaco AG, 2007 WL 1521468 (N.D. Ind. May 22, 2007)

In this breach of contract case, plaintiff Guy Chemical sought damages for, among other things, the loss of business from third parties.  Defendant Romaco subpoenaed records from ABRO Industries, Inc., a customer of plaintiff, to learn how much of ABRO’s business plaintiff had lost.  Specifically, Romaco sought correspondence, orders, cancelled orders, or orders that could not be filled between Guy Chemical and ABRO.  Apparently, most of the requested information was stored electronically by ABRO.  ABRO informed Romaco that it used an outside computer firm to handle its electronic data, and that it would have to determine how to search for the records.  ABRO subsequently advised Romaco that the final cost for searching and producing the requested records would be $7,200.  ABRO did not object to producing the material sought, but requested that Romaco pay the cost of production.  Romaco moved to compel, arguing that ABRO was being unreasonable by requiring payment for the cost of production as a condition precedent to production.
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City Barely Avoids Spoliation Sanctions and Receives Harsh Reprimand

Doctor John’s, Inc. v. City of Sioux City, 486 F. Supp. 2d 953 (N.D. Iowa 2007)

Although the parties settled their respective claims, the court retained jurisdiction over the question of whether or not sanctions should be imposed upon the City for the destruction, during the pendency of litigation, of recordings of City Council closed sessions concerning the ordinances challenged in the case.  The court held a conference on the matter and received further information about changes made to the City’s policy regarding retention of recordings of closed sessions of the City Council.

The court began its analysis by remarking:

A first year law student should have–and most would have–known that a party must retain documents or records that are likely to be relevant in pending litigation.  The City’s claim that it was simply following state law in destroying key evidence is laughable and frivolous.  No state or federal statute, rule, or common law allows a party to destroy critical evidence during the pendency of litigation, and the City policy that permitted destruction of certain documents after a specified period of time certainly did not require destruction of such documents.

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Advisory Committee Modifies Proposed Evidence Rule 502 In Light of Public Comment Received, and Recommends Approval by Standing Committee

On May 15, 2007, the Advisory Committee on Evidence Rules issued its Report to the Standing Committee regarding its April 2007 meeting and its recommendations with respect to proposed Evidence Rule 502 on Waiver of Attorney-Client Privilege and Work Product.  (The 83-page Report is available here.)  The Report states that, at the April 2007 meeting, the Committee carefully considered all of the public comment received on the proposed rule, as well as other issues raised by members of the Committee.  As a result, the Committee made a number of changes to the version of proposed Rule 502 that was issued for public comment.  This new modified version of proposed Evidence Rule 502 is available here.  The Committee’s post-publication modifications to the proposed rule include the following: 

1.  Changes were made by the Style Subcommittee of the Standing Committee, both to the text as issued for public comment, and to the changes to the rule made at the April 2007 Evidence Rules Committee Hearing.

2.  The text was clarified to indicate that the protections of Rule 502 apply in all cases in federal court, including cases in which state law provides the rule of decision.

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Search Software Gets Boost From New Rules

By Samar Srivastava From today’s Wall Street Journal:

"Demand for software that can search and locate emails, text messages, videos and spreadsheets is expected to surge in the wake of federal legislation requiring companies to make such information readily available in court proceedings.

In December, Congress passed the Federal Rules of Civil Procedure, accelerating deadlines for companies to identify and describe electronically searchable information that can be used as evidence in a lawsuit. To comply with requests for such electronically stored information during litigation, companies need to have a plan and tools in place. "

Click here to read the entire article [subscription required.]

Evidence Rules Advisory Committee Approves Proposed New Evidence Rule 502, with Modifications

From the "What’s New" section of the U.S. Courts Federal Rulemaking website, regarding the actions of the various Advisory Committees this spring: 

"At its April 12-13, 2007, meeting, the Advisory Committee on Evidence Rules considered public comments on proposed new Evidence Rule 502, which was published for comment in August 2006.  The advisory committee approved the proposed new rule, with modifications.  The advisory committee will transmit the proposed new rule to the Committee on Rules of Practice and Procedure with a recommendation that it be approved and transmitted to the Judicial Conference for its consideration."

We will post the modified Evidence Rule 502 here when it becomes available.

Court Sets Out Detailed Guidelines for Discovery of ESI, Adapting “Suggested Protocol” of the District of Maryland

O’Bar v. Lowe’s Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007)

This is a putative class action in which the plaintiffs allege they were discriminated against because they were not minorities or females.  Finding that plaintiffs were entitled to limited precertification discovery, the court ordered the parties, pursuant to Rule 26(f), to jointly prepare and submit to the court a specific and detailed precertification discovery plan.  Based upon the previous disputes between the parties, the court stated it anticipated issues arising as to the discovery of data through various types of computer programs maintained by defendant.  Thus, in order to assist the parties in conducting discovery of electronically stored information (“ESI”), the court set out detailed guidelines that would govern the parties.  The guidelines were adapted from the “Suggested Protocol for Discovery of Electronically Stored Information” set forth by the United States District Court for the District of Maryland.

The court encouraged the parties to discuss the following subjects, in preparing the precertification discovery plan:
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Chief U.S. Magistrate Judge Grimm Provides Detailed Analysis of Evidentiary Issues Associated with Electronic Evidence

Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

In this case, the parties filed cross-motions for summary judgment but failed to comply with the requirement of Rule 56 that they support their motions with admissible evidence.  Chief United States Magistrate Judge Paul W. Grimm denied both motions without prejudice to allow resubmission with proper evidentiary support.  In this lengthy memorandum opinion, Magistrate Judge Grimm remarks that, although cases abound regarding the discoverability of electronic records, research failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence.  “Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.”  Magistrate Judge Grimm describes five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice, and counsels:

Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses.  Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try.  The Court hopes that the explanation provided in this memorandum order will assist in that endeavor.

View the full opinion on the court’s website, here.

Discovery Savings: Going Native

By James D. Sherman and Lori E. Steidl in the May 4, 2007 issue of ALM’s The Corporate Counselor.

"In today’s litigation world, corporate counsel struggle to contain the ever-increasing costs of document discovery. The explosion of electronically stored information is often a huge contributor to the expense of discovery. Consultants, vendors and e-discovery software can help bring greater efficiencies and cost savings to the process. But while there’s a dizzying array of options available, they’re not all created equal. Finding the right solution requires that you do your homework.

Before deciding to outsource your next electronic discovery request, take a moment to examine the review practices of your legal service provider or outside counsel. Many legal service providers and law firms are relying on outdated and expensive methods to collect and analyze data for litigation. For example, be wary of solutions that involve conversion of documents into TIFF or PDF format before an initial review for relevance of the underlying data takes place. This practice needlessly creates additional electronic "copies" of vast amounts of data, most of which ultimately prove to be irrelevant and thus are never produced or otherwise used. It may also undermine your ability to take advantage of certain useful characteristics of native format documents that are lost in the conversion process. A step as simple as using e-discovery software that facilitates processing and review of electronic documents in their native format can save your company a great deal of money when it comes to document discovery. "

Click here to read the entire story online.

Court Uses Marginal Utility Test to Deny Motion to Compel Production of Deleted Emails from Backup Tapes

Oxford House, Inc. v. City of Topeka, 2007 WL 1246200 (D. Kan. Apr. 27, 2007)

This litigation arose from the City of Topeka’s decision to deny plaintiff’s request for conditional use permits.  Plaintiff propounded interrogatories seeking information related to the City’s decision on the permits, specifically requesting information about, among other things:  “Each and every communication related to the application expressed in instant messages, either saved on a data recording medium or not saved.”  In response, the City referred plaintiff to certain documents that had been produced.  Plaintiff asserted that the documents did not sufficiently respond to the interrogatory, and argued that the City failed to identify specific emails or ex parte electronic communications, resulting in an incomplete discovery response.  Plaintiff moved to compel further responses.  The City countered that:  (1) it possessed no additional documents or information responsive to the requests, and (2) the requests were unduly burdensome.  The court sided with the City on both arguments, and denied the motion to compel.
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Senate subpoenas Gonzales on Rove e-mail

Written by the Associated Press and posted on MSNBC on May 2, 2007:

"Leahy not accepting White House explanation some may have been lost

WASHINGTON – Senators subpoenaed Attorney General Alberto Gonzales Wednesday, ordering him to provide all e-mails related to presidential adviser Karl Rove and the firings of eight federal prosecutors.

"It is troubling that significant documents highly relevant to the committee’s inquiry have not been produced," Judiciary Committee Chairman Patrick Leahy, D-Vt., wrote in a letter to Gonzales. The subpoena gives Gonzales until May 15 to turn over the information. "

Read the entire story on MSNBC.com here.

 

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