Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

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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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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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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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

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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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From a January 18, 2008 article by Pete Yost of the Associated Press:

A White House chart indicates no e-mail was archived on 473 days for various units of the Executive Office of the President, a House committee chairman says.

Rep. Henry Waxman, D-Calif., says a White House spokesman's comments suggesting no e-mail had disappeared conflicted with what congressional staffers were told in September.

On Thursday night, Waxman said he was scheduling a hearing for Feb. 15 and challenged the White House to explain spokesman Tony Fratto's remark that "we have absolutely no reason to believe that any e-mails are missing."

Fratto based his comment on the contents of a White House declaration filed in federal court casting doubt on the accuracy of a chart created by a former White House employee that points to a large volume of e-mail gone from White House servers.

Click here to read the full article.

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The Supreme Court of Ohio is now accepting public comments on proposed amendments to the Ohio Rules of Civil Procedure addressing electronic discovery.  The amendments to Rules 16, 26, 33, 34, 36, 37, and 45 are based on the December 2006 amendments made to the Federal Rules of Civil Procedure.  

Click to view the proposed amendments as published for public comment.

Comments on the proposed amendments must be submitted in writing to:  Jo Ellen Cline, Legislative Counsel, Supreme Court of Ohio, 65 South Front Street, 7th Floor, Columbus, Ohio 43215-3431 or ClineJ@sconet.state.oh.us and received no later than March 4, 2008.

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Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 15, 2008)

On January 15, 2008, a declaration authored by the White House’s Chief Information Officer was filed in response to the Court’s January 8 Order, discussed in our January 10, 2008 post on the subject.  The declaration responds to four questions posed by Magistrate Judge John M. Facciola regarding the backup media being preserved by the White House for purposes of the litigation.  Among other things, the CIO confirms that emails sent or received during the 2003-2005 time frame should be contained on existing backup tapes.  However, the CIO states that her office “does not know if any emails were not properly preserved in the archiving process.”

The CIO further states that her office is undertaking an “independent effort” to determine whether there may be “anomalies” in Exchange email accounts for any particular days resulting from the potential failure to properly archive emails for the 2003-2005 time period.  The CIO states that this “independent assessment” is expected to be completed in the near term.

Click to view a Washington Post article on this most recent filing and for additional background.

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To modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information, the Judicial Council of California has proposed amending California’s Civil Discovery Act and two rules in the California Rules of Court on the management of civil cases.

The proposal has two parts.  First, it would amend the Civil Discovery Act (Code Civ. Proc., §§ 2016.010 et seq.) to include new provisions relating to electronic discovery and would add two new sections relating to electronic discovery to the act.  Second, the proposal would amend two case management rules in the California Rules of Court (rules 3.724 and 3.728) to encourage parties to identify and discuss issues relating to electronic discovery early in the course of litigation and to encourage courts to address these issues in case management orders.  These rule amendments are closely connected with, and are intended to assist in implementing, the proposed legislation.  The rule proposals would not go forward without the legislation.

Click to view the full proposal and invitation to comment:  Electronic Discovery: Legislation and Rules

The deadline for comments is Friday, January 25, 2008.  Comments may be submitted through the Judicial Council’s online comment form, or by regular mail to the following address:

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On January 10, 2008, the Arkansas Supreme Court accepted the Committee on Civil Practice’s proposals for changes in the Arkansas Rules of Civil Procedure and Rules of Evidence to address the inadvertent disclosure of information protected by the attorney-client privilege, or any other evidentiary privilege, or the work product doctrine.  The amendments go into effect immediately.

The Reporter's Notes explain the rationale behind the amendments:

Lawyers do their best to avoid mistakes, but they sometimes happen.  Discovery has always posed the risk of the inadvertent production of privileged or protected material.  The advent of electronic discovery has only increased the risk of inadvertent disclosures.  This amendment addresses this risk by creating a procedure to evaluate and address inadvertent disclosures, including disputed ones.

Click to view the Arkansas Supreme Court Order approving the amendments, which sets out the full text of the amendments and the accompanying Reporter's Notes.

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Please join us for in-depth information and discussion about the legal impact of recent amendments to the Federal Rules of Civil Procedure.

Hosted by Microsoft and featuring speakers from K&L Gates, these summits will help equip your company to comply with evolving federal e-discovery requirements and help avoid costly penalties.

To register, or to find out more information about this conference series, please click here.

Seattle Event:
January 29, 10:00AM -1:30PM:  Martha J. Dawson
W Hotel Seattle
1112 4th Avenue
Seattle WA, 98101

Detroit Event:
January 30, 9:00AM-1:00PM:  Thomas J. Smith
Microsoft Corporation - Southfield Office
1000 Town Center, Suite 2000
Southfield, MI 48075

San Francisco Event:
January 31, 8:30AM-11:00AM:  Helen Bergman Moure
Microsoft Corporation - San Francisco Office
835 Market Street, Suite 700
San Francisco, CA 94103

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Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 8, 2008)

This case involves a claim by the National Security Archive (“the Archive”) and Citizens for Responsibility & Ethics in Washington that several million email messages were improperly deleted from White House computer servers.  Plaintiffs have requested that the court compel expedited discovery and a Rule 26(f) conference, and defendants have moved to dismiss the case.  On Tuesday, January 8, 2008, Magistrate Judge John M. Facciola ordered the White House to provide additional information about the backup media it is preserving in the litigation pursuant to an earlier court order.  The court explained the relevance of the information to its decision on plaintiffs’ pending discovery motion:

To the extent that the missing emails are contained on the back-ups preserved pursuant to Judge Kennedy’s order, there is simply no convincing reason to expedite discovery – particularly where, as here, there is a pending motion to dismiss.  If the missing emails are not on those back-ups, however, the relief likely to be requested by the Archive will be beyond the scope of the present Motion – and, indeed, beyond the scope of this referral.  The request for that relief will also be time-sensitive:  emails that might now be retrievable from email account folders or “slack space” on individual workstations are increasingly likely to be deleted or overwritten with the passage of time.

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Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

On Monday, January 7, 2008, United States Magistrate Judge Barbara L. Major issued her Order on Broadcom’s Motion for Sanctions related to Qualcomm’s failure to produce tens of thousands of documents that Broadcom had requested in discovery.  (A copy of the January 7 order downloaded from Westlaw is available here.)  Additional background regarding the sanctions motion is available in our previous posts on the case on September 20, 2007, August 29, 2007 and August 13, 2007.

In this most recent order, the judge ordered Qualcomm to pay Broadcom $8,568,633.24 for its “monumental and intentional discovery violation,” representing all of Broadcom’s attorneys’ fees and costs incurred in the litigation.  (Because the trial judge had already awarded these costs and fees to Broadcom in its Exceptional Case Order, the court directed that Qualcomm receive credit toward this penalty for any money it paid to Broadcom to satisfy the exceptional case award.)

The court also found that six of Qualcomm’s outside attorneys “assisted Qualcomm in committing this incredible discovery violation by intentionally hiding or recklessly ignoring relevant documents, ignoring or rejecting numerous warning signs that Qualcomm’s document search was inadequate, and blindly accepting Qualcomm’s unsupported assurances that its document search was adequate.”  The court observed that these six attorneys “then used the lack of evidence to repeatedly and forcefully make false statements and arguments to the court and jury.”  As such, the court found that the attorneys had violated their discovery obligations and also may have violated their ethical duties.  Accordingly, the court concluded that sanctions against the six named outside attorneys were also warranted.

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Washington Convention Center
801 Mt. Vernon Place NW
Washington, DC 20001

February 4-6, 2008

K&L Gates partner David E. Cohen will be presenting the opening day keynote address at this inaugural computer forensics event.  David’s presentation, entitled "A Litigation ‘Perfect Storm’:  Why Data Proliferation and E-Discovery are Battering U.S. Businesses,” will begin at 6 p.m. on Monday, February 4, 2008.

The Computer Forensics Show is described as the “Don’t Miss!” event of the year for all litigation, accounting and IT professionals.  There will be multiple tracks of sessions offered each day, specifically geared towards the different audiences who will be attending, i.e., “Legal Track,” “Accounting Track,” “IT Security Track,” “IT Security (Advanced) Track,” and “Lab Track.” 

Click here for more information about the event, or to register.

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In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007)

Defendants in underlying real estate litigation sought a writ of mandamus compelling the trial court to set aside a discovery order that required them to permit a forensic expert to create a mirror image of each of the computer hard drives in their office in an effort to locate two particular documents or iterations of those documents.  The documents were two drafts of a partial assignment of a real estate contract, and served as the basis for the underlying suit.  Plaintiff A & W Development, LLC had sought the metadata because it wanted to identify the points in time when the partial assignment draft was modified in relation to a particular diary entry.   The evidence related to the issue of whether the Honzas altered the partial assignment after the parties concluded their agreement.

The Honzas contended that the court abused its discretion because:  (1) the discovery order was overbroad and authorized an improper "fishing expedition"; (2) the order authorized the disclosure of information protected by the attorney-client privilege; and (3) the order authorized the disclosure of confidential information pertaining to the Honzas' other clients who had no connection to the underlying lawsuit.

The appellate court denied the petition for writ of mandamus, finding that the order was not overbroad and was appropriately tailored to prohibit the unauthorized disclosure of privileged or confidential information.  In reaching its decision, the appellate court noted that there was no Texas authority directly on point, and described the relevant state and federal decisions:
 

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Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007)

In this case, plaintiffs alleged that their civil rights had been violated when the defendants denied them the opportunity to purchase real estate at auction.  The email dispute was first brought to the court's attention in August 2006, when the plaintiffs moved to compel supplemental discovery responses from the County.  Plaintiffs’ counsel argued that the County had failed to perform a diligent search for responsive documents, evidenced by the fact that it had only produced two emails.  During a conference with the court on the matter, counsel for the County suggested that since it was "more the exception than the rule," that employees were "communicating be email," a further search was unlikely to uncover additional emails.  However, because it became clear that the County had failed to conduct a system wide search for responsive emails, the court directed the County to have its Information Technology Department search the County's servers for responsive emails.

In October 2006, plaintiffs moved for sanctions, contending that the County had willfully failed to comply with the court's order.  In response, the County submitted an affidavit from its Director of Management Information Services, explaining that the County lacked the resources to perform the court-ordered search for additional emails.  He estimated that the cost to restore the County’s backed up data would be roughly $36,000, and that the process would take as much as 1,700 man hours.

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